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LAWS  OF  BUSINESS 


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FOKIS  AND  DIKECTIONS  FOE  ALL  TKANSACTIONS, 


BY 

THEOPHILUS  PARSONS,  LL.D., 
hi 

PROFESSOR    OF    LAW    IN    HARVARD    UNIVERSITY,    CAMBRIDGE,    AND    AUTHOR    OF    TREATISES    ON    THE 

LAW  OF  CONTRACTS,   ON  MERCANTILE  LAW,  ON  THE  LAW  OF  PARTNERSHIP,  ON  THE  LAWS 

OF  PROMISSORY  NOTES  AND  BILLS   OF  EXCHANGE,  ON   THE  LAW  OF  INSURANCE, 

AND  ON  THE  LAW  OF  SHIPPING  AND  ADMIRALTY. 


NATIONAL  PUBLISHING  CO., 

CINCINNATI,     OHIO,     &     MEMPHIS,     TENN. 

JONES,   JUNKIN,    &   CO.,    CHICAGO,   JLI^S. 
1871. 


T 
P 

l*7/ 


Entered,  according  to  Act  of  Congress,  in  the  year  1869,  by 

THEOPHILUS   PARSONS, 
In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CONTENTS. 


CHAPTER  I. 
THE  PURPOSE  AND  USE  OF  THIS  BOOK. 

PACT 

To  bring  the  Laws  of  Business  within  the  Reach  of  all  Persons         .        .1 

CHAPTER  n. 

BUSINESS  LAW  IN  GENERAL. 
The  Principles  on  which  it  rests  .  5 

CHAPTER  HI. 

INFANTS  OR  MINORS. 

Form  1.  —  Promise  in  Writing 11 

CHAPTER  IV. 

APPRENTICES. 

Forms. 

Form  2.  —  A  General  Indenture  of  Apprenticeship  as  sometimes  used  in 

New  England 13 

3.  —  Shorter  Indenture  of  Apprenticeship 14 

CHAPTER  V. 
MARRIED    WOMEN. 

Abstract  of  the  Law  of  Husband  and  Wife  in  the  Several  States      .         .     17 

m 


!Y  CONTENTS. 

Forms. 

PAGB 

Form  4.  —  Indenture  to  put  in  Trust  the  Property  of  an  Unmarried  Woman     40 
5.  —  Another  Form  of  Indenture  in  Trust,  for  Property  of  Unmarried 

Women        .        .        .         ..'•••         .44 

CHAPTER  VI. 
AGREEMENT  AND  ASSENT. 

Section  I.  —  The  Legal  Meaning  of  Agreement    .....     47 
n.  —  What  is  an  Assent  .         .         .         .         .         .         .         .49 

III.  —  Offers  made  on  Time 50 

IV.  —  A  Bargain  by  Correspondence  ......     51 

V.  —  What  Evidence  may  be  received  in  Reference  to  a  Writtten 

Contract    .         .         .         .         .        .        .        .         .     53 

VI.  —  Custom  or  Usage 55 

Forms, 

Form  6.  —  General  Agreement,  sufficient  for  many  Purposes  .         .57 

7.  — General  Agreement,  as  used  in  the  Western  States        .         .     58 

8.  —  General  Contract  for  Mechanic's  Work          .         .         .         .59 

9.  —  Agreement  for  Purchase  and  Sale  of  Land,  in  Use  in  the  Mid- 

dle States      .         .         .        .        .         .         .         .         .59 

10.  —  Agreement  for  Sale  of  Land,  in  Use  in  the  Western  States      .     60 

11.  —  Agreement  for  Warranty  Deed,  used  in  the  Western  States     .     62 

12.  —  Contract  to  convey  Real  Estate,  in  Use  in  the  Middle  States    .     63 

13.  —  Agreement  for  the  Purchase  of  an  Estate,  in  Use  in  New  Eng- 

land      64 

14.  —  Agreement  for  the  Sale  of  an  Estate  by  Private  Contract         .     67 
15. — Agreement  to  be  signed  by  an  Auctioneer,  after  a  Sale  by 

Auction 68 

16.  —  Agreement  to   be  signed  by  the  Purchaser,  after  a  Sale  by 

Auction 68 

17.  —  Agreement  to  make  an  Assignment  of  a  Lease       .         .         .69 

18.  — Agreement  for  making  a  Quantity  of  Manufactured  Articles     .     69 

19.  —  Agreement  between  a  Trader  and  a  Bookkeeper    .         .         .70 

20.  —  Agreement  for  Damages  in  laying  out  or  altering  Road   .         .70 

21.  —  Agreement  between  a  Person  who  is  retiring  from  the  Active 

Part  of  a  Business,  and  Another  who  is   to  conduct  the 

game  for  their  Mutual  Benefit   .        .        .        .        .        .71 

V 


CONTENTS.  V 

PAGE 

Form  22.  —  Brief  Building  Contract 73 

23.—  Full  and  Minute  Building  Contract    .         .         .         .         .74 
24.  —  Specification  to  be  annexed  to  the  Building  Contract     .         .     78 


CHAPTER  VH. 
CONSIDEKATION. 

Section  I.  -  -  The  Need  of  a  Consideration 90 

II.  —  What  is  a  Sufficient  Consideration      .         .         .         .         .91 

III.  -  -  Illegal  Consideration         .......     93 

IV.  —  Impossible  Consideration 94 

V.  —  Failure  of  Consideration 94 

CHAPTER  Vm. 

BONDS. 

Essentials  of  a  Bond 97 

"  Condition"  of  the  Bond .        .98 

Forms. 

Form  25.  —  Simple  Bond,  without  Condition         .         .         .         .         .99 
26.  —  Bond  for  Payment  of  Money,  with  a  Condition  to  that  Effect, 

with  Power  of  Attorney  to  confess  Judgment  annexed        .     99 
27. — Bond  for  Conveyance  of  a  Parcel  of  Land  ....  100 

28.  —  Bond  for  a  Deed  of  Land,  with  Acknowledgment  before  Nota- 

ry Public 101 

29.  —  Bond  in  Another  Form,  for  Conveyance  of  Land,  with  Ac- 

knowledgment     .         .         .         .         .         .         .         .  102 

30.  —  Bond  to  Corporation  for  Payment  of  Money  due  for  Contribu- 

tion to  Capital  Stock,  with  Power  of  Attorney  to  confess 
Judgment 103 

CHAPTER  IX. 

ASSIGNMENTS. 
Instruments  to  which  the  term  is  particularly  given          ....  106 


TX  CONTEXTS 

Forms. 

PAGE 

Form  31.  —  Brief  Form  of  an  Assignment  to  be  indorsed  on  a  Note,  or 

any  Similar  Promise  or  Agreement  ....  106 

32.  —  General  Assignment,  with  Power  of  Attorney       .         .         .  106 

33.  —  Assignment  of  a  Bond      .         .         .         .  •       .         .         .  107 

34.  —  Assignment  of  a  Bond,  with  Power  of  Attorney,  and  a  Cove- 

nant ......        .        ...  107 

35.  —  Assignment  of  a  Judgment,  in  the  Form  of  an  Indenture       .  108 

36.  —  Assignment  of  Wages,  with  Power  of  Attorney    .         .         .109 

CHAPTER  X. 
SALES   OF  PERSONAL  PROPERTY. 

Section  I.  —  What  constitutes  a  Sale    .......  110 

IE.  —  Delivery  and  its  Incidents         ......  115 

m.  —  Contracts  Void  for  Illegality  or  Fraud        .         .         .         .120 

IV.  —  Sales  with  Warranty        .......  122 

Forms. 

Form  37.  —  Bill  of  Sale  of  Personal  Property      .         .         .        .         .125 
38.  —  Bill  of  Sale  of  Personal  Property,  with  a  Condition  to  make 

it  a  Mortgage  with  Power  of  Sale   .....  125 
Section     V.  —  The  Sale  of  One's  Business  ......  127 

CHAPTER  XI. 
STOPPAGE  IN  TRANSITU. 

Derivation  and  Meaning  of  the  Term    .......  128 

Rights  of  Parties  in  Goods  in  Transitu  .......  129 


CHAPTER 
GUARANTY. 

Forms. 
Form  39.  —  Guaranty  to  be  indorsed  on  Note         .        .        .  .  134 

40.  —  Guaranty  of  a  Note  on  Separate  Paper        ....  134 

41.  —  Guaranty  in  Another  Way         ...  .134 


CONTENTS.  VII 

PACK 

Form  42.  —  Letter  of  Guaranty 134 

43.  —  Guaranty  with  Collaterals,  authorizing  Sale  .         .         .         .  135 

44.  —  Guaranty  with  Collaterals,  promising  Additional  Security  or 

authorizing  Sale    .  .         .  135 


CHAPTER  XIII. 
THE   STATUTE   OF   FRAUDS. 

Section  I. — Its  Purpose  and  General  Provisions 136 

II.  —  Promise  to  pay  the  Debt  of  Another 137 

III.  —  Agreement  not  to  be  performed  within  a  Year      .         .         .139 

IV.  —  The  Form  and  Subject-Matter  of  Agreement       .         .         .  139 

CHAPTER  XIV. 
PAYMENT  AND  TENDER. 

Section  I.  —  How  Payment  may  be  made 141 

II.  —  Appropriation  of  Payment 142 

CHAPTER  XV. 

RECEIPTS  AND  RELEASES. 

Remarks  on  the  Nature  of  Receipts,  and  Degrees  of  Fulness  thereof .         .  144 

Forms. 

Form  45.  —  Receipt  for  Money  ........  144 

16.  —  Another  Form  of  Receipt  for  Money  .....  144 

.47. — Receipt  for  Papers  or  other  Articles    .         .         •         .         .144 

48.  —  General  Release 145 

49.  —  Mutual  General  Release  by  Indenture         ....  146 

50. — Release  from  Creditors  to  a  Debtor,  under  a  Composition       .  146 

51. — Release  of  all  Legacies      .         .         .         .         .         .         .  147 

52.  —  Release  of  a  Bond,  it  being  lost          .....  147 

53. — Release  of  a  Judgment     .......  148 

54.  —  Release  of  a  Condition .         .  149 

55.  — Release  of  a  Covenant  contained  in  an  Indenture  of  Lease     .  149 

56.  —  Release  in  Extinguishment  of  a  Power         .                           .  150 


vm  CONTEXTS. 

PAGH 

Form  57.  — Release  from  a  Lessor  to  a  Lessee  (upon  his  sunendering  his 

Lease)  from  the  Covenants  therein 150 

58.  —  General  Release  of  Dower 151 

59.  —  Release  of  Dower  to  the  Heir 151 

60.  —  Release  of  Dower  in  Consideration  of  an  Annuity  given  by  "Will  152 
61. — Release  of  Dower  when  the  Husband  of  the  Widow  joins  in 

the  Deed .  153 

62. — Release  of  a  Trust   ....      •  ?.        ..        .  .  153 

63. — Release  of  Right  to  Lands         .         .        .        .        .  .154 

64.  — Release  between  two  Traders  in  settling  Accounts         .  .  155 


CHAPTER  XVI. 

NOTES  OF  HAND  AND  BILLS  OF  EXCHANGE,  DRAFTS,  AND  CHECKS. 
Section  I.  —  The  Purpose  of,  and  the  Parties  to,  such  Papers          .         .  156 

Forms. 

Form  65.  —  Common  Form  of  a  Bill  of  Exchange          .         .     • "  i         .157 
66.  —  Common  Form  of  a  Promissory  Note  .         .         ...         .  158 

Section  II.  — What  is  Essential  to  a  Negotiable  Note  or  Bill   .         ,        .  159 

Forms. 

Form  67.  —  Form  of  a  Note  given  for  a  Chattel  sold,  with  a  Condition  pre- 
serving the  Ownership  of  the  Seller 161 

Section  HE.  —  Consideration  of  Negotiable  Paper .....  168 

IV. — Rights  and  Duties  of  the  Maker 170 

V.  — Rights  and  Duties  of  the  Holder  of  Negotiable  Paper       .  171 
VI. — Rights  and  Duties  of  the  Indorser  .         .         .         .         .183 

VH.  —  Rights  and  Duties  of  the  Acceptor 187 

VIH.  —  Acceptance  or  Payment  for  Honor .         .         .         .         .188 

Forms. 

Form  68.  —  Judgment  Note,  with  Waiver 189 

69.  —  Judgment  Note,  with  Waiver  and  Power  of  Attorney    .         •  190 

70.  — Judgment  Note,  with  Fuller  Waiver  and  Power  of  Attorney  .191 


CONTENTS.  IX 

CHAPTER  XVLT. 
AGENCY. 

PAOK 

Section  I.  —  Agency  in  General .         .         .  .  .         .  192 

II.  —  How  Authority  may  be  given  to  an  Agent          .  194 

III.  —  Extent  and  Duration  of  Authority 197 

IV.  —  Execution  of  Authority 199 

V.— Liability  of  an  Agent       .......  200 

VI.  —  Rights  of  Action  growing  out  of  Agency     .         .         .  .200 

VII.  —  How  a  Principal  is  affected  by  the  Acts  of  his  Agent  .  .  201 

Vm.  —  Mutual  Rights  and  Duties  of  Principal  and  Agent        .  .  202 

IX.  —  Factors  and  Brokers        .         .         .         .     *    .         .  .  205 

Forms. 

Form  71.  —  Power  of  Attorney  .        . 208 

72.  — Power  of  Substitution 209 

73. — Power  of  Attorney  in  a  Shorter  Form  .  .  .  .  209 
74.  — Full  Power  of  Attorney  to  demand  and  recover  Debts  .  .  210 
75. — Power  of  Attorney  to  sell  and  deliver  Chattels  .  .  .211 

76.  — Power  of  Attorney  given  by  Seller  to  Buyer         .         .         .211 

77.  —  Power  of  Attorney  to  sell  Shares  of  Stock,  with  Appointment 

by  Attorney  of  Substitute       ......  212 

78.  —  Power  of  Attorney  to  subscribe  for  Stock     .  212 

79.  —  Proxy  or  Power  of  Attorney  to  vote 212 

80. — Proxy  Revoking  all  Previous  Proxies          ....  213 

81.  —  Proxy  with  Affidavit  of  Ownership,  in  Use  in  New  York       .  213 

82.  —  Power  to  receive  Dividend  .         .         .  214 


CHAPTER  XVIH. 
PARTNEKSHIP. 

Section  I.  —  What  a  Partnership  is      .......  214 

II. — How  a  Partnership  may  be  formed     .         .         .         .         .215 

III.  —  How  a  Partnership  may  be  dissolved 217 

IV.  —  Property  of  the  Partnership 219 

V.  —  Authority  of  each  Partner,  and  the  Joint  Liability  of  the 

Partnership    .         . 220 


x  CONTENTS. 

PAGE 

Section  VI. — Remedies  of  Partners  against  each  other  .         .         .         .224 

VII. — Right  of  the  Firm  against  Third  Parties  .         .         .         .226 

YTTT- — Rights  of  Creditors  in  Respect  to  Funds  .         .         .         .227 

IX.  —  Meets  of  Dissolution 229 

X.  —  Limited  Partnership      .......  230 

Forms. 
Form  83.  —  Articles  of  Copartnership  between  two  Tradesmen        .         .  231 

84.  —  Short  Form  of  Articles  of  Copartnership      ....  234 

85.  —  Certificate  of  a  Limited  Partnership,  with  Acknowledgment 

and  Oath 235 

CHAPTER  XIX. 
ARBITRATION. 

Section  I.  —  The  Submission  and  Award      ......  236 

IT.  —  Revocation  of  a  Submission  to  Arbitrators  ....  240 

Forms. 
Form  86.  —  Simple  Agreement  to  Refer 242 

87.  —  Arbitration  Bond.     One  or  more  Arbitrators        .         .         .  242 

88.  — Award  of  Arbitrators 243 

CHAPTER  XX. 
THE   CARRIAGE  OF  GOODS  AND  PASSENGERS. 

Section  I. — A  Private  Carrier 244 

IE.  —  The  Common  Carrier 245 

HI.  —  Obligation  of  Common  Carrier  to  receive  and  carry  Goods 

and  Passengers 248 

IV.  —  The  Lien  of  the  Common  Carrier 252 

V. — Liability  of  the  Common  Carrier 252 

VI. — The  Carrier  of  Passengers 254 

VII.  —  Notice  by  the  Carrier  respecting  his  Liability       .         .         .  255 
Vm.  —  The  Carrier's  Liability  for  Goods  carried  by  Passengers         .  257 

Forms, 

Form  89.  —  Steam  Packet  Company's  Receipt 260 

90.  —  Express  Company's  Receipt 261 


CONTENTS.  XI 

CHAPTER  XXI. 
LIMITATIONS. 

PAGE 

Section  I.  —  Statute  of  Limitations      .......  263 

II.  —  Construction  of  the  Statute      ......  264 

III.—  The  New  Promise  .         .         ......  264 

IV.  —  Part  Payment         ......                  .  265 

V.  —  Some  Statutory  Exceptions       ......  266 

VI.  —  When  the  Period  of  Limitation  begins        ....  267 

VLT  —  The  Statute  does  not  affect  Collateral  Security     .         .         .  268 

CHAPTER  XXEI. 
INTEKEST   AND   USURY. 

Section  I.  —  What  Interest  is,  and  When  it  is  Due        ....  269 

EC.  —  Charge  for  Risk  or  for  Service  ......  273 

III.  —  Sale  of  Notes         ........  274 

IV.  —  Compound  Interest  ........  276 

Abstract  of  the  Usury  Laws  of  the  States     ......  277 


CHAPTER 

BANKRUPTCY. 

Voluntary  Bankruptcy  ;  Commencement  of  Proceedings.         .         .         .  281 

Assignments  and  Assignees         ......         .  282 

Distribution  of  the  Bankrupt's  Estate  .......  287 

Bankrupt's  Discharge,  and  its  Effect    .         .         .         .  .       .         .         .  289 

Preferences  and  Fraudulent  Conveyances  declared  Void  ....  292 

Involuntary  Bankruptcy     .........  294 

Superseding  the  Bankrupt  Proceedings  by  Arrangement  ....  295 

Amendatory  Act  of  1868   .........  297 

Rules  in  Bankruptcy  .......        ...  298 

CHAPTER  XXIV. 
THE  LAW  OF  PLACE. 

Section  I.  —  What  is  meant  by  the  Law  of  Place  .         .        .         .         .  305 

II.  —  General  Principles  of  the  Law  of  Place     ....  305 

IIL  —  Place  of  the  Contract      .......  307 

IV.—  Domicil  .  308 


am  CONTEXTS. 

CHAPTER  XXV. 
THE  LAW  OF  SHIPPING. 

PAGE 

Section  I.  —  Ownership  and  Transfer  of  Ships 311 

II. — Transfer  of  Property  in  a  Ship          .  .         .314 

HI.  —  Part-Owners .        .         .316 

IV. —  Liability  of  Mortgagees   .         .         .         .         •         •    ,     .  318 

V.  —  Contract  of  Bottomry      .         .  .        .        •  -,     .  318 

VI.  —  Employment  of  a  Ship  by  the  Owner         .        ...]-.  320 

VH.  —  Charter  Parties      .         ...         .         .         .         .  '      .  327 

VEH.  —  General  Average .         .331 

IX.— Salvage .  335 

X. — Navigation  of  the  Ship -  ,  -      .  338 

XI.  —  Seamen         .........  342 

Formt. 

Form  91.— Bill  of  Sale  of  Vessel .347 

92. —  Mortgage  of  a  Vessel .  349 

93.  —  Charter  Party 351 

94.—  Bill  of  Lading 353 

95. — Shipping  Articles  in  Common  Use      .....  353 

96.  —  Bottomry  Bond 356 

97.  —  Oath  or  Affirmation  of  Consignee  or  Agent          .         .         .  357 

98.  —  Custom-House  Power  of  Attorney,  No.  201        .,  >    ;.   ,     .352 

99.  —  Maritime  Protest '  v    ..*.".  360 

100.  —  Steamboat  Warrant,  as  used  in  the  Western  States  .  361 


CHAPTER  XXVI. 
MARINE    INSURANCE. 

Section  I.  —  How  the  Contract  of  Insurance  is  made      ....  362 

II.  —  Interest  of  the  Insured 365 

HI.  —  Interest  which  may  be  insured  .....  367 

IV.  —  Prior  Insurance      .  .         .         .         .         .         .  370 

V. — Double  Insurance  and  Re-insurance  .         ."       »        .         .371 

VI.  —  Memorandum 371 

VII.  —  Express  Warranties 372 

THE.  —  Implied  Warranties 373 

IX. — Representation  and  Concealment       .        .        .  .375 


CONTENTS.  XIII 

PAGB 

Section  X. — What  things  should  be  communicated         ....   376 

XI. — Premium 377 

XII. — Description  of  the  Property  Insured  .         .         .         .378 

XEH.  —  Perils  covered  by  the  Policy    .         .         .......         .         .  379 

XIV.  — Perils  of  the  Sea    .         . 381 

XV.  —  Collision 381 

XVI.  — Fire '    .        .382 

XVn.  — Piracy,  Kobbery,  or  Theft 382 

XVin.  — Barratry        .     . .         .383 

XIX.  —  Capture,  Arrest,  and  Detention        .....  383 
XX.  —  General  Clause       ........  384 

XXI.— Prohibited  Trade .         .  384 

XXII.  —  Deviation 385 

XXIII.  — Termini  of  the  Voyage,  and  of  the  Risk    .         .        .         .387 

XXIV.  —  Total  Loss  and  Abandonment 389 

Form. 
Form  101. — Abandonment        ........  892 

Section  XXV.  —  General  Average      . 395 

XXVI.  —  Partial  Loss     .        .  .      .-        .        .        .        .        .396 

CHAPTER  XXVH. 
FIKE   INSURANCE. 

Section  I.  —  Usual  Subject  and  Form  of  the  Insurance  ....  398 
II.  —  Construction  of  Policies  against  Fire          .         .        .         .401 

III.  —  Interest  of  the  Insured    .......  407 

IV.  —  Double  Insurance  .......  409 

V.  —  Warranty  and  Representation  .         .         .         .         .         .410 

VI. — Risk  incurred  by  the  Insured    .         .        ...        .         .413 

VII.— Valuation 415 

VIII.  —  Alienation     .........  416 

IX. —Notice  and  Proof 417 

X.  —  Adjustment  and  Loss      .         .        .         .        .        .         .418 

Forms. 
Form  102.  —  Immediate  Notice  of  Loss        .         .        .        .        .         .  419 

103.  —  Notice,  with  Certificate  of  Magistrate        ....  420 

104.  —  Assignment  of  a  Policy  to  be  indorsed  thereon    .         .        .  421 

105.  —  Transfer  and  Assignment  of  Policy 422 


CONTENTS. 

CHAPTER  XXVIH. 
LIFE    INSURANCE. 


PAGB 


Section  I.  — Purpose  and  Method  of  Life  Insurance       ....  423 

II.  —  Premium 424 

ni.  — Restrictions  and  Exceptions  in  Life  Policies         .         .         .  425 

IV. — Interest  of  the  Insured 427 

V.  —  Assignment  of  a  Life  Policy 427 

VI.  —  Warranty,  Representation,  and  Concealment        .         .         .428 
VII.  —  Insurance   against  Accident,    Disease,    and   Dishonesty   of 

Servants 432 


CHAPTER  XXIX. 
DEEDS  CONVEYING  LAND. 

Section  I.  —  What  is  Essential  to  such  Deeds 433 

IE.  —  Usual  Clauses  in  Deeds .  438 

Forms. 

Form  106.  —  Deed  Poll  of  Warranty,  in  Common  Use  in  New  England  .  445 

107.  —  Deed  of  Gift  by  Indenture,  without  any  Warranty  whatever .  446 

108.  —  Deed  of  Bargain  and  Sale,  without  any  Warranty       .         .  447 

109.  —  Quit-Claim  Deed,  without  any  Warranty    ....  448 

110.  —  Deed  Poll  of  Release  and  Conveyance;  short  Form    .         .  449 

111.  —  Deed,  with  Special  Warranty  against  the  Grantor  only          .  449 
112. — Quit-Claim  Deed  (long  Form),  Homestead  Waiver     .         .  451 

113.  —  Deed,  with  Covenant  against  Grantor,  without  Release  of 

Homestead  or  Dower  .......  452 

114.  —  Separate  Relinquishment  of  Homestead  and  Dower  in  Land 

sold  under  Execution  .......  453 

115. — Full  Warranty  Deed,  by  Indenture,  without  Release  of 

Homestead  or  Dower 455 

116.  —  Warranty  Deed  (short  Form),  with  release  of  Homestead 

and  Dower         .         .         .         ...         .         .  456 

117. — Warranty  Deed,  with  Covenant  against  Nuisances,  without 

Release  of  Homestead  or  Dower  .  .  .  .  .458 

118.— Bond  for  a  Deed 460 

119.  —  Contract  for  Sale  of  Land,  with  Penal  Obligation  .  .  461 


CONTENTS.  XV 

PAGE 

Form  120.  —  Power  of  Attorney  to  sell  Lands 462 

121.  — Trust  Deed  for  the  Benefit  of  a  Wife,  or  some  other  Person   463 

122.  —  Trust  Deed  to  secure  Payment  of  a  Note,  without  Release 

of  Homestead  or  Dower       ......  464 

123. — Deed  of  Trust  to  secure  a  Debt  (fuller  Form),  and  with 

Release  of  Dower 466 

124.  —  Trust  Deed  to  secure  a  Note  (shorter  Form),  but  with  War- 
ranty, and  Release  of  Homestead  and  Dower  .         .         .  469 
125.— Deed  from  Trustees        . 471 

126.  —  Deed  of  Master  in  Chancery 473 

127.  —  Sheriff's  Deed  on  Execution,  in  Use  in  the  Western  States  .  474 

128.  —  Sheriff's  Deed,  in  Use  in  New  England    .         .         .         .475 

129.  —  Sheriff's  Tax  Deed,  in  Use  in  the  Western  States        .         .  476 

130.  —  Deed  of  Executor,  in  Use  in  the  Eastern  States.         .         .  478 

131.  — Deed  of  Executor,  in  Use  in  the  Middle  States  .         .         .  479 
132. — Deed  of  Administrator  of  Intestate 481 

133.  —  Deed  Poll  of  Guardian  of  a  Minor 483 

134.  —  Deed  of  Referee  on  Foreclosure,  in  Use  in  the  Middle  States  484 

135.  —  Deed  of  Collector  of  Taxes 486 

136.  — Deed  of  Assignee,  in  Use  in  the  Western  States         .         .  487 

137.  —  Acknowledgment   of  Grantor  and   Wife  identified  before 

Commissioner  for  another  State      .....  489 


CHAPTER  XXX. 

MORTGAGES  OF  LAND. 

Purpose  of  a  Mortgage 490 

Rights  of  Mortgagor  and  Mortgagee 491 

Forms. 

Form  138.  —  Promissory  Note,  to  be  secured  by  Mortgage      .         .         .  493 
139. — Bond,  to  be  secured  by  a  Mortgage  .....  493 

140.  —  Mortgage,  without   Power  of  Sale  and  without  Warranty, 

but  with  Release  of  Homestead  and  Dower     .         .         .  494 

141.  —  Mortgage,  with  Power  of  Sale,  to  secure  a  Bond,  without 

Release  of  Dower 495 

142.  — Mortgage  to  secure  a  Debt,  with  Power  of  Sale ;  short  Form  497 

143.  — Mortgage  to  secure  a  Debt  (fuller  Form),  with  Power  of  Sale  498 


m  CONTENTS. 

PAG» 

Form  144.  —  Deed  Poll  of  Mortgage,  with  Power  to  sell,  and  Insurance 

Clause,  and  Release  of  Homestead  and  Dower         .         .  499 

145.  —  Mortgage  by  Indenture,  with  Power  of  Sale,  and  Interest 

and  Insurance  Clause,  to  secure  a  Bond          .         .         .  501 

146.  —  Mortgage  to  Executors,  with  Power  of  Sale        .         .         .  504 

147.  —  Mortgage  of  a  Lease       .......  506 

148.  —  Mortgagee's  Deed,  under  a  Power  of  Sale.         .         .         .  508 

149.  —  Assignment  of  Mortgage  ;  short  Form       ....  509 

150.  —  Assignment  of  Mortgage,  with  Power  of  Attorney      .         .  510 

151.  —  Assignment  of  Mortgage  by  a  Corporation          .         .         .511 

152.  —  Discharge  of  Mortgage  ;  short  Form          ....  512 

153.  —  Eelease  and  Quitclaim  of  Mortgage,  as  used  in  the  Western 

States       .........  512 

154.  —  Discharge  of  Mortgage,  as  used  in  the  Middle  States  .         .  513 

155.  —  Discharge  and  Satisfaction  of  Mortgage  by  a  Corporation      .  514 

156.  —  Release  of  a  Part  of  the  Mortgaged  Premise      .         .         .  514 

157.  —  Deed  Extending  a  Mortgage    ......  516 


CHAPTER  XXXI. 

LEASES. 
Definition  of  the  Term        .........  517 

Rights  and  Obligations  of  the  Parties   .......  518 

Fixtures  ............  520 

Forms. 

Form  158.  —  Short  Form  of  a  Lease    .......  521 

159.  —  Fuller  Form,  with  a  Provision  for  Abatement  of  Rent.         .  522 

160.  —  Short  Form  of  Lease,  in  Use  in  the  "Western  States     .         .  524 

161.  —  Lease  of  City  Property,  in  Use  in  Chicago          .         .         .  525 

162.  —  Lease,  with  Provisions  for  Taxes  and  Assessments       .         .  527 

163.  —  Lease,  with  Covenants  about  Water  Rates,  and  Injury  by 

Fire,  in  Use  in  New  York    ......  529 

164.  —  Lease  by  Grant,  in  Use  in  the  Western  States    .         .         .  530 

165.  —  Lease  by  Certificate,  with  Surety      .....  533 

166.  —  Lease  of  City  Property,  in  Use  in  St.  Louis       .         .         .  535 

167.  —  What  is  Called  a  Country  Lease,  in  Use  in  the  Western 

States        .....  534 

168.  —  A  Ground  Lease    .         .  536 


CONTENTS. 

PAGB 

Form  169.  —  Assignment  of  Lease,  and  Ground  Rent     ....  539 

170.  —  Lease  containing  Chattel  Mortgage  Covenants,  to  secure  Rent  540 

171.  —  A  Building  Lease 544 

172. — A  Mining  Lease 545 

173.  —  Lease  of  Land  supposed  to  contain  Oil,  Salt,  or  other  Minerals.  546 

174. — Assignment  of  a  Lease 547 

175. — Landlord's  Notice  to  quit  for  Non-Payment  of  Rent;  short 

Form 548 

176.  — Landlord's  Notice  to  quit  for  Non-Payment  of  Rent ;  another 

Form 548 

177. — Landlord's  Notice  to  pay  Rent  due,  or  quit  .  .  .  549 

178.  — Landlord's  Notice  to  leave  at  End  of  Term         .         .         .  549 

179.  —  Landlord's  Notice  to  determine  a  Tenancy  at  Will       .         .  550 

180.  —  Receipt  for  Rent,  in  Use  in  New  York      .         .         .         .  550 

CHAPTER  XXXH. 

MORTGAGES  OF  GOODS  AND  CHATTELS,  OB  PERSONAL  PROPERTY. 
The  Pledge  of  Personal  Property 551 

Forms. 
Form  181.  —  Mortgage  of  Personal  Property 553 

182.  —  Mortgage  of  Personal  Property,  with  Warranty  .         .         .  554 

183.  —  Mortgage  of  Personal  Property,  with  Power  of  Sale     .         .  555 

184.  —  Mortgage  of  Personal  Property,  with  Power  of  Sale ;  another 

Form 556 

CHAPTER  XXXLTL 

LAW- OF  PATENTS. 

What  may  be  Patented 558 

Who  is  entitled  to  a  Patent 558 

What  will  prevent  the  Granting  of  a  Patent  .         .         .         .         .         .  558 

Mode  of  Proceeding  to  obtain  a  Patent 559 

Forms. 

Form  185. — Form  of  Petition 559 

186.  —  Specification  to  accompany  a  Petition         ....  560 

187.— Form  of  Oath .562 

2 


CONTENTS. 

PAGB 

Drawings          ......«••••  562 

Model 563 

Completion  of  the  Application 564 

Examination 564 

Protests 565 

Withdrawals 565 

Retaining  Patents  in  the  Secret  Archives       .         .         .         .         .         .  565 

Appeals 565 

Form  188.  —  Appeal  to  the  Examiner-in-chief 566 

Interferences     ...........  568 

Re-issues 569 

Form  189.  — Surrender  of  a  Patent  for  Re-issue        ....  570 
190.  —  Oath  to  be  appended  to  Application  for  Re-issue     .         .  571 

Disclaimers .  571 

Form  191.  —  Disclaimer  by  an  Assignee  .         .        .  .         .  571 

Extensions 572 

Designs 574 

Form  192.  —  Application  for  Patents  of  Designs        ....  575 
193. — Specifications  for  Designs     .....         .576 

194.  — Form  of  Oath .  576 

Foreign  Patents 576 

Caveats .  577 

Form  195. — Form  of  a  Caveat      .         .  .        .        «         •  578 

Repayment  of  Money 579 

Assignments  and  Grants .         .         ..  579 

Form  196.  —  Assignment  of  the  Entire  Interest  in  Letters-Patent  be- 
fore obtaining  the  same,  and  to  be  recorded  preparatory 

thereto ...  580 

197.  —Grant  of  a  Partial  Right  in  a  Patent      .....  580 

The  Office  Fees,  and  how  Payable        .         .         .  .         .         .  581 

Taking  and  transmitting  Testimony       .         .         .         .         ...         .  583 

Form  198. — Magistrate's  Certificate  .       .         ...         .         .  584 

199.  —  Form  in  Taking  of  Depositions 585 

Filing  and  Preservation  of  Papers ,         .586 

Amendments 586 

Form  200.  —  Amendment  of  Specification 587 

References  . .  588 

Giving  or  withholding  Information 588 

Rules  of  Correspondence .  590 


CONTENTS.  XIX 

CHAPTER  XXXIV. 
LAW    OF    COPYRIGHT. 

PAGE 

Section  I.  —  What  may  be  the  Subject  of  Copyright       ....  591 

II.  —  How  Copyrights  are  to  be  obtained    .....  592 

HE.  —  Punishment  for  Infringement  of  Copyright ....  594 

Forms. 
Form  201.  — Agreement  between  Author  and  Publisher ;  short  Form       .  596 

202.  —  Agreement  between  Author  and  Publisher ;  fuller  Form       .  596 

203.  —  Assignment  of  a  Copyright 598 

CHAPTER  XXXV. 

MEANS    PROVIDED    FOR    THE     RECOVERY    AND    COLLECTION    OF 

DEBTS. 

1.  —  Arrest  and  Imprisonment 599 

2.  —  Trustee  Process         .         .         .         .         .        .      -  •        .         .  599 

8.  — The  Homestead 600 

CHAPTER  XXXVI. 

LIENS    OF   MECHANICS    AND    MATERIAL    MEN   FOR    THED3   WAGES 

AND    MATERIALS. 

What  is  a  Lien 601 

Forms. 

Form  204.  —  Notice  under  Mechanic's  Lien  Law 603 

205.  — Bill  of  Particulars  of  Mechanic's  Claim    .         .         .         .604 

206.  —  Release  and  Discharge  of  a  Mechanic's  Lien       .         .         .  604 
207. — Release  and  Discharge  of  a  Mechanic's  Lien;  another  Form  605 

CHAPTER  XXXVn. 

PENSIONS. 

Instructions .        .         .         .  606 

Army  Pensions 608 

Navy  Pensions 610 

Act  of  July  14,  1862 .        .  611 


XX  CONTENTS. 

PAGE 

Act  of  July   4,  1864 611 

Act  of  June   6,  1866 614 

Act  of  July  25,  1866 620 

Act  of  July  27,  1868 .        .622 

Forms. 

Form  208.  —  Declaration  for  an  Invalid  Pension 625 

209.  —  Declaration  for  obtaining  a  Widow's  Army-Pension     .         .  626 
210. — Declaration  for  Minor  Children  in  order  to  obtain  Army- 
Pensions    627 

211.  — Declaration  for  Mother's  or  Father's  Application  for  Army- 

Pension     .         .         .628 

212.  —  Declaration  of  Orphan  Brothers  or  Sisters  for  Army-Pension  629 

213.  —  Declaration  for  the  Increase  of  an  Invalid  Pension      .         .  630 

214.  —  Declaration  of  the  Guardian  of  a  Minor  Child   .         .     ,    .  631 

215.  —  Widow's  Declaration  for  an  Increase  of  Pension          .         .  632 

216.  —  Guardian's  Declaration  for  Increase  of  Pension  .         .         .  633 

217.  —  Declaration  for  Widow's  Pension  and  Increase   .         .         .  634 

218.  —  Declaration  for  Restoration  to  the  Rolls     .         .         .         .636 

219.  —  Declaration  for  Arrears  of  Pensions 637 

220.  —  Declaration  for  Increase  of  Pension 638 

221.  —  Surgeon's  Affidavit.     Navy  Claims 638 

Guardian's  Claims  under  Section  4,  Act  of  July  27,  1868      ...         .  639 

CHAPTER  XXXVUL 
THE  DISPOSAL  OF  PEOPEETY  BY  WILL. 

Section  I.  — Wills .        .  640 

H.  — Codicils         . 643 

m.— Revocation  of  Wills 643 

Form  222.—  A  Will        .        .        .        .        •        .        ...  644 

CHAPTER  XXXTX 
EXECUTOES  AND  ADMINISTEATOES. 

Forms. 

Form  223.  —  Petition  to  be  appointed  Executor,  without  further  Notice    .  648 
224.  — Executor's  Bond.        ...  .649 


'CONTENTS.  XXI 

PAGE 

225.  —  Bond  of  Executor,  who  is  also  Residuary  Legatee       .  650 

226. — Administrator's  Bond 650 

227.  —  Administrator's  Petition  for  leave  to  sell  a  Part  of  the  Real 

Estate 651 

228.  —  Administrator's  Petition  for  leave  to  sell  the  Whole  of  the 

Real  Estate 652 

229.  —  Bond  of  Administrator  licensed  to  sell  Real  Estate      .  .       .  653 

230.  —  Account  of  Executor       .......  654 


CHAPTER  XL. 

GUAEDIANS. 
The  rights  and  duties,  powers  and  liabilities,  of  Guardians       .         .         .  655 

CHAPTER  XLI. 
STAMP   ACT. 

Schedule  of  Stamps  required  on  different  Instruments     ....  657 
Remarks  on  Starap  Duties  .         . 663 


NOTE. 


Mr  first  chapter  will  state  the  purpose  for  which  I  have  made  this  book,  and  the  use  I 
hope  it  will  perform. 

I  first  attempted  to  make  such  a  book,  compiling  it  from  the  law-books  I  had  already 
made  for  the  profession ;  and,  adding  a  few  Forms,  published  it  in  1857  as  "  The  Laws  of 
Business  for  Business-Men,  in  all  the  States  of  the  Union."  I  became  satisfied  that  this 
book  was  open  to  three  important  objections.  One,  that  it  contained  very  much  of  argu- 
ment, and  the  consideration  of  minute  questions,  which  were  out  of  place  in  a  book 
intended  not  for  the  profession,  but  for  the  community.  Another  objection  was,  that 
very  many  more  Forms  were  necessary  to  make  the  book  as  useful  as  it  might  be.  The 
third  objection  was,  that  as  that  book  was  entirely  compiled  from  my  other  books,  and 
contained  no  topic  not  embraced  in  them,  it  did  not  cover  all  the  ground  that  the  public 
had  a  right  to  expect  that  a  book  of  this  kind  would  occupy. 

I  proposed,  from  time  to  time,  to  make  a  new  edition  of  this  work,  and,  indeed,  made  a 
beginning  of  this ;  but  I  became  satisfied  that  this  would  not  suffice,  and  that  nothing 
would  suffice  but  A  NEW  BOOK.  This  I  have  now  made,  and  offer  it  to  the  community. 

I  have  retained  in  this  book  a  part  of  the  title,  and  so  much  of  the  text,  of  the  former 
work  as  I  thought  would  be  useful ;  rewriting  it  with  such  changes  as  might  make  it  more 
easily  understood,  and  more  useful.  I  have  added  many  chapters  on  new  topics ;  and  I 
have  multiplied  the  Forms  tenfold.  Of  these  Forms  some  are  entirely  new,  composed  by 
me  for  this  book ;  others  are  selected  with  great  care,  from  the  widest  collection  I  could 
make  of  Forms  sanctioned  by  use  in  various  parts  of  the  country.  In  these  I  have  made 
changes  and  additions,  with  directions  for  use.  Some  of  these  Forms  will  be  found  brief 
and  simple ;  others  of  them,  especially  those  in  relation  to  real  estate,  are  full  and 
minute.  No  one  but  a  lawyer  knows  how  necessary  it  is  to  use  the  technical,  customary, 
and  established  language  of  Forms,  every  phrase  of  which  has  been  through  repeated  liti- 
gation, and  has  thus  acquired  a  certain  meaning.  Much  in  such  Forms  will  seem,  to  those 
ignorant  of  law,  to  be  wordy  and  with  much  repetition  ;  but,  if  the  Forms  are  made  appar- 
ently more  simple  by  omissions  and  abbreviations,  they  may  be  good,  and  they  may  not: 
and  whether  they  are  or  not  cannot  be  known  except  by  litigation.  And  he  must  be  a 
bold  lawyer  who  would  undertake  to  prefer  Forms  of  his  own  make  to  those  which  the 
Courts  and  common  use  have  sanctioned.  This  I  have  not  done,  because  the  very  object 
of  this  book  is  to  enable  persons  who  use  it  to  conduct  their  business-affairs  with  ease, 
safety,  and  certainty. 

I  think  such  a  book  possible,  and  I  venture  to  hope  that  I  have  made  such  a1  book.  I 
know  only  that  whatever  labor  and  care  could  do  to  make  the  book  useful  and  safe  has 
been  done.  I  have  not  made  my  law-books  with  the  efforts  which  each  required,  and 
then  cast  off  this  book  for  more  general  use,  lightly ;  for  in  nothing  that  I  have  pub- 
lished have  I  labored  more  strenuously  to  make  my  work  satisfy  the  just  requirements  of 
those  to  whom  it  is  offered. 

THEOPHILUS  PARSONS. 


THE   LAWS   OF   BUSINESS. 


CHAPTER   I. 

THE   PURPOSE    AJV1>    USE    OF    THIS    BOOK. 

THE  title  of  this  work  indicates,  to  some  extent,  its  purpose  and 
character ;  but,  as  they  are  in  certain  respects  peculiar,  it  is  thought 
that  some  remarks  respecting  them  may  make  the  volume  more  useful. 

Twenty  years  ago,  after  more  than  twenty-five  years  of  practice 
at  the  bar,  I  accepted  the  office  of  Dane  Professor  in  the  Law 
School  of  Harvard  University.  I  have  employed  whatever  leisure 
the  duties  of  that  office  have  left  me,  in  preparing  a  series  of 
text-books  on  Commercial  Law.  I  have  published  many  volumes  ; 
and  the  manner  in  which  they  have  been  received  by  my  brethren, 
calls  for  my  most  grateful  acknowledgments.  One  of  those  works 
was  entitled  "  The  Elements  of  Mercantile  Law,"  and  was  intended 
as  a  general  epitome  of  all  Commercial  Law.  I  began  it  mainly  for 
the  use  of  lawyers,  but  at  the  same  time  hoping  that  it  might  be  so 
written  as  to  be  useful  to  others  who  were  not  lawyers.  Before  I 
had  made  much  progress  in  it,  the  hope  that  one  book  could  answer 
these  two  purposes  faded  away  ;  and  I  finally  made  that  work  ex- 
clusively for  lawyers.  But  the  circumstance  that  many  persons  who 
were  not  lawyers,  and  did  not  intend  to  be,  have  bought  my  works,  — 
the  remarks  that  have  reached  me  in  relation  to  them,  and  particu- 
larly in  reference  to  that  above  mentioned,  from  such  persons, — 
and  many  other  kindred  facts,  —  have  given  additional  strength  to 
a  belief  that  has  led  me  to  prepare  this  volume,  for  wide  and  general 
use. 

That  belief  is,  that  there  is  a  strong  and  growing  disposition, 


2  PUEPOSE  AND  USE  OF  THIS  BOOK. 

among  the  men  of  business  of  this  country,  to  understand  the  laws 
of  business.  This  disposition,  and  the  actual  diffusion  of  this  knowl- 
edge, have  both  greatly  increased  of  late  years,  and  I  believe  could 
not  have  been  arrested  ;  for  this  progress  is  one  element  of  advancing 
and  improving  civilization ;  and  I  think  it  cannot  now  be  prevented. 

The  institutions  and  characteristics  of  this  country  have  their  bear- 
ing upon  this  question.  "We  have  no  sovereign  but  the  law  ;  or 
rather  the  people  is  the  sovereign,  and  the  law  is  their  only  utterance. 
It  is  a  sense  of  this  that  has  here  transferred,  in  some  degree  at  least, 
the  loyalty  which  in  the  kingdoms  of  the  Old  World  attaches  to  a 
person,  to  the  law  itself,  using  this  word  in  its  most  comprehensive 
sense.  This  is  a  good  thing ;  not  because  the  law  is  always  wise  and 
good,  but  because  it  will  more  probably  become  wise  and  good,  if 
the  whole  community  recognize  it  as  entitled  to  obedience,  and  there- 
fore entitled  to  their  constant,  earnest,  and  vigorous  endeavors  to 
cure  its  defects,  and  bring  it  into  harmony  with  those  principles  of 
truth  and  justice  of  which  it  should  be  the  expression.  This  great 
duty  rests  upon  us  with  the  stronger  obligation  because  of  our 
greater  intelligence  and  activity  of  mind;  or  more  general  education 
and  wider  extent  of  common  knowledge  ;  all  which  are  none  the  less 
facts,  although  they  are  sometimes  used  as  mere  food  for  vanity,  or 
as  topics  for  adulation.  And  all  these  things  together  seem  to  lead 
to  the  conclusion,  that  here  and  now  proper  efforts  should  be  made 
to  supply  all  of  the  community  who  ask  for  it,  —  with  accurate  and 
practical  information  concerning  those  laws  which  are  of  the  most 
immediate  concern  to  them. 

So  far  as  concerns  the  whole  people,  their  wish,  if  expressed  in  the 
simplest  terms,  would  undoubtedly  be,  to  know  the  laws  which  must 
regulate  their  conduct  and  determine  their  rights.  This  wish  admits 
of  but  one  question  ;  it  is,  How  far  is  this  thing  practicable  ?  for  so 
far  as  it  is,  its  propriety  and  expediency  can  hardly  be  denied  or 
doubted.  Indeed,  they  who  would  most  strenuously  oppose  any  effort 
to  teach  the  people  the  law,  would  do  so  only  on  the  ground  that  it  is 
impossible  to  give  to  the  public  any  knowledge  of  this  kind  which 
would  be  wide  enough  and  accurate  enough  for  use.  They  would 
think  that  the  very  endeavor  to  learn  the  law,  by  persons  the  main 
business  of  v:hose  lived  must  be  of  a  very  different  kind,  would  lead 


PURPOSE  AJSTD  USB   OF  THIS  BOOK.  3 

only  to  a  superficial  and  erroneous  view  of  the  subject ;  and  this, 
under  the  name  of  knowledge,  is  only  the  most  dangerous  ignorance. 

We  should,  however,  remember,  that  the  people  generally,  here  and 
elsewhere,  must  necessarily  know  a  certain  amount  of  law,  for  with- 
out this  they  cannot  live  safely  in  society.  For  example,  men  in 
business  must  know  something  of  the  most  general  laws  of  business  ; 
as  how  to  conduct  their  sales,  how  to  make  notes,  how  to  collect 
them,  and  the  like ;  and  all  men  must  know  so  much  of  .ordinary 
law  as  protects  and  defines  their  common  and  universal  rights. 
Moreover,  it  will  probably  be  admitted  that  important  mistakes, 
leading  to  much  loss  and  difficulty,  are  every  day  made,  because 
many  do  not  know  those  general  principles  or  rules  of  law  which 
some  do  know,  and  which  every  man  in  business  might  know.  The 
question,  therefore,  can  only  be,  how  much  of  law  it  is  possible  and 
desirable  for  men  in  business  to  learn ;  and  what  is  their  best  way 
of  learning  it. 

Here  let  me  remark,  that  few  persons,  who  have  not  had  occasion 
to  study  and  to  teach  Commercial  Law  as  a  whole,  are  aware  of  that 
unity  and  harmony  of  its  principles,  which  make  it  indeed  a  system 
of  laws  ;  or  of  the  prevailing  simplicity  and  reasonableness  of  its 
rules.  An  eminent  English  lawyer  has  said,  that  it  was  astonishing 
within  how  small  a  space  all  the  principles  of  commercial  law  may 
be  compacted.  It  is  equally  true,  that  the  laws  of  business  are 
generally  free  from  mere  technicality  and  obscurity  ;  and  the  reason 
is,  that  they  are  for  the  most  part,  and  substantially,  nothing  more 
than  the  actual  practice  of  the  business  community,  expressed  in 
rules  and  maxims,  and  invested  with  the  authority  of  law. 

The  knowledge  which  a  trader  acquires  of  the  laws  of  trade  need 
not,  at  all  events,  be  superficial ;  for  a  knowledge  of  principles,  and 
an  intelligent  appreciation  of  them,  however  limited  it  may  be, 
should  not  be  regarded  as  superficial.  And  these  limits  need,  not  be 
narrow.  The  extent  of  this  knowledge,  and  its  accuracy,  thorough- 
ness, and  utility,  must  obviously  depend  upon  the  books  from  which 
it  is  acquired,  and  upon  the  manner  of  using  those  books. 

Considerations  of  this  kind  led  me  to  the  belief,  that  it  was  possi- 
ble to  make  a  book,  which  should  place  within  the  apprehension  of 
every  intelligent  trader,  and  of  every  young  man  who  proposes  to 


4  PURPOSE  AND  USB  OP  THIS  BOOK. 

engage  in  any  department  of  business  (and  this  now  means  almost 
every  man  in  the  community),  at  the  cost  of  no  more  time  than 
every  one  can  conveniently  give  to  it,  a  useful  knowledge  of  all  the 
elements,  or  general  rules  and  principles,  of  the  Laws  of  Business. 

In  other  words,  I  thought  it  an  undeserved  reproach  of  our  Laws 
of  Business,  to  say  that  they  were  not  intelligible  by  all,  if  stated 
with  simplicity  and  accuracy  ;  and  an  equally  undeserved  reproach 
of  our  Men  of  Business,  to  say  that  they  could  not  comprehend  laws, 
which  were  made  for  them,  and  were  intelligible  in  themselves,  and 
plainly  stated.  It  seemed  to  me,  therefore,  that  the  time  had  come, 
in  this  country,  for  a  book  which  no  one  has  ever  attempted  to  make 
anywhere  heretofore.  This  book  should  contain  all  the  principles 
of  all  the  branches  of  the  laws  which  regulate  the  common  transac- 
tions of  life,  stated  with  all  the  accuracy  that  care  and  labor  could 
insure  in  any  book,  and  so  stated  that  any  man  of  good  capacity, 
with  reasonable  effort,  might  understand  all  of  them ;  and  might, 
with  the  help  of  the  Index,  find  in  the  volume  a  true  and  intelligible 
answer  to  the  questions  which  every  day  arise ;  and  might,  if  he 
were  willing  to  make  a  regular  study  of  the  whole  book  in  course, 
become  acquainted  with  the  rules,  and  the  reasons  of  the  rules,  by 
which  all  business  may  be  safely  conducted.  And  this  book  I 
have  endeavored  to  make.  I  have  compiled  it,  mainly  from  the  law- 
books  I  have  already  made  for  the  profession.  If  they  are  accurate 
and  trustworthy,  this  is  so  ;  and  I  may  be  permitted  to  say,  that 
whatever  earnest  endeavors  could  do  to  make  those  books  trust- 
worthy was  done ;  and  that  accumulated  testimony,  which  I  have 
no  right  to  disregard,  encourages  me  to  hope  that  I  have  not  labored 
in  this  respect  in  vain. 

I  have  made  changes  which  seemed  to  be  required  by  the  intended 
adaptation  of  this  book  to  merchants  and  not  to  lawyers.  These 
are,  first,  the  omission  of  citations  and  references  to  reports 
and  authorities ;  next,  the  addition  of  some  elementary  rules  and 
principles  and  definitions,  which  would  not  be  necessary  in  a  book 
for  lawyers  only ;  and  lastly,  the  use  of  common  or  non-professional 
language,  the  general  omission  of  merely  technical  words,  and  the 
full  explanation  of  such  words  when  they  are  used. 

If  there  are  those  who  are  preparing  for  a  life  of  business,  or  are 


BUSINESS  LAW  IN  GENEBAL.  5 

now  engaged  in  it,  who  will  study  this  volume,  in  course,  —  dwelling 
on  what  seems  most  important,  and  examining  with  care  what  seems 
obscure,  —  I  venture  to  hope  that  they  will  find  the  work  so  ar- 
ranged, and  the  meaning  so  expressed,  that  what  comes  before 
explains  what  follows,  and  every  part  of  it  will  be  intelligible.  At 
the  same  time,  I  have  labored  to  make  every  thing  plain  ly  itself, 
as  far  as  that  was  possible,  that  it  might  not  disappoint  those  who, 
without  reading  it  in  course,  look  into  it  for  an  answer  to  questions 
as  they  arise.  And  for  such  persons  I  have  endeavored  to  have  the 
Index  of  Subjects  (at  the  end  of  the  book)  exceedingly  full  and 
minute. 

I  have  added  a  great  variety  of  Forms.  Of  course  no  collection 
of  Forms  could  be  made  large  enough  to  meet  the  exact  facts  of 
every  case  that  can  arise.  But  it  is  possible  to  give  accurate  Forms 
of  all  sorts  ;  and  any  person  can  select  the  Form  nearest  to  his  par- 
ticular need,  and  easily  make  the  alterations  which  the  facts  of  his 
case  require. 


CHAPTER   H. 

I]V 


ALL  law  is  divided  into  what  is  called,  in  law-books,  common  law 
and  statute  law.  We  have  legislatures,  and  our  fathers  had  them  ; 
and  a  very  large  proportion  of  the  laws  now  binding  upon  us  were 
made  by  those  legislatures  in  a  formal  and  regular  way.  All  these 
are  Statutes  ;  and  taken  altogether,  they  compose  the  Statute  Law. 
Beside  this,  however,  there  is  another  very  large  portion  of  our  law 
which  was  not  enacted  by  our  legislatures  ;  and  it  is  called  the 
Common  Law.  In  fewer  words,  all  law  was  regularly  enacted,  or 
it  was  not.  If  it  was,  it  is  statute  law  ;  if  it  was  not  so  enacted,  it 
is  common  law. 

The  common  law  of  the  several  States  of  this  country  consists,  iii 


6  BUSINESS  LAW  LS  GENEKAL. 

the  first  place,  of  all  the  law  of  England  —  whether  statute  or 
common  there  —  which  was  in  force  in  that  State  at  the  time  of 
our  independence,  and  recognized  by  our  courts,  and  which  has  not 
since  been  repealed  or  disused.  And  next,  of  all  those  universal 
usages,  and  all  those  inferences  from,  or  applications  of,  established 
law,  which  courts  in  this  country  have  recognized  as  having  among 
us  the  force  of  law.  For  this  common  law  there  is  no  authority 
excepting  the  decisions  of  the  courts ;  and  we  have  no  certain 
means  of  knowing  what  is  or  is  not  a  part  of  the  common  law, 
excepting  by  looking  for  it  in  those  decisions.  Hence  the  value  and 
importance  of  the  reported  decisions,  which  are  published  by  official 
reporters  in  most  of  our  States. 

A  very  important  part  of  the  common  law,  especially  to  all  men 
hi  business,  is  what  is  called,  by  an  ancient  phrase,  the  Law-Mer- 
chant. By  this  is  meant  the  law  of  merchants  ;  or,  more  accurately, 
the  law  of  mercantile  transactions  ;  and  by  this  again  is  meant  all 
that  branch  of  the  law,  and  all  those  principles  and  rules,  which 
govern  mercantile  transactions  of  any  kind.  This  great  department 
of  the  law  derives  its  force  in  part  from  statutory  enactments,  but 
in  far  greater  part  from  the  well-established  usages  of  merchants, 
•which  have  been  adopted,  sanctioned,  and  confirmed  by  the  courts. 
For  example,  a  large  proportion  of  the  law  of  factors  and  brokers, 
most  of  that  of  shipping  and  of  insurance,  and  nearly  all  the  pecu- 
liar rules  applicable  to  negotiable  paper  (or  promissory  notes  and 
bills  of  exchange  payable  to  order),  belong  distinctly  to  the  Law- 
Merchant. 

The  courts  of  this  country  have  always  acknowledged  that  a 
custom  of  merchants,  if  it  were  proved  to  be  so  nearly  universal 
and  so  long  established  that  it  must  be  considered  that  all  mer- 
chants know  it  and  make  their  bargains  with  reference  to  it,  consti- 
tutes a  part  of  the  law-merchant.  And  the  law-merchant  is  itself 
a  part  of  the  common  law,  and  therefore  has  the  whole  obligatory 
force  of  law.  This  would  not  be  true,  if  the  custom  was  one  which 
violated  statute  law,  or  the  obvious  principles  of  public  policy  or 
common  honesty.  But  we  may  suppose  that  no  custom  of  this  kind 
would  ever  be  so  generally  adopted  and  established  as  to  come 
before  the  courts  with  any  claim  for  recognition  as  law. 


OF  INFANTS,   OR  MINORS.  7 

A  great  deal  of  the  language  of  every  art  or  science  or  profession 
is  technical  (indeed,  technical  means  belonging  to  some  art),  and  is 
peculiar  to  it,  and  may  not  be  understood  by  those  who  do  not  pur- 
sue the  business  to  which  it  belongs.  This  is  as  true  of  law  as  of 
every  thing  else.  In  this  work,  however,  I  have  avoided  as  far  as 
possible  mere,  law-words ;  and  when  I  have  used  them  have  ex- 
plained them  at  the  time.  There  are  some,  however,  which  cannot 
be  dropped :  they  express  exactly  what  is  meant,  and  we  cannot 
express  it  without  them,  unless  by  long  and  awkward  sentences.  A 
good  instance  of  this  is  in  those  words  which  end  in  er  (or  or)  and 
in  ee.  As  for  example,  promisor  and  promisee,  vendor  and  vendee, 
indorser  and  indorsee.  These  terminations  are  derived  from  the 
Norman-French,  which  was,  for  a  long  time,  the  language  of  the 
courts  and  of  the  law  in  England.  And  it  might  seem  that  we  had 
just  as  good  terminations  in  English,  in  er  and  ed,  which  mean  the 
same  thing.  But  it  is  not  so.  Originally  they  meant  the  same 
thing,  but  they  do  not  now  :  for  both  er  and  ee  are  applied  in  law  to 
persons,  and  ed  to  things ;  so  that  we  want  all  three  terminations. 
For  example,  indorser  means  the  man  who  indorses  ;  indorsee  means 
the  man  to  whom  the  indorsement  is  made  ;  but  the  note  itself  wa 
say  is  indorsee?.  So  vendor  means  the  man  who  sells,  vendee  means 
the  man  to  whom  something  is  sold,  and  the  thing  sold  is  vended. 
And  the  promisor  makes  the  promise,  the  promisee  receives 
it,  and  the  thing  to  be  done  is  promised.  "We  have  retained 
not  only  this  phraseology,  but  some  other  words  or  phrases,  of 
which  similar  things  might  be  said. 


CHAPTER  III. 

INFAJSTS,    OK,   MINORS. 


SECTION  I. 

GENERALLY,  all  persons  may  bind  themselves  by  contracts.     But 
some   are  incapacitated.     The   incapacity  may  arise   from   many 


8  OF  INFANTS,   OR  MINORS. 

causes ;  as  from  insanity  ;  or  from  being  under  guardianship ;  or 
from  alienage  in  time  of  war ;  or  from  Infancy  ;  or  from  Marriage. 

All  persons  are  infants,  in  law,  until  the  age  of  twenty-one.  But 
in  Vermont,  Maryland,  Ohio,  Maine,  Missouri,  Texas,  and  perhaps 
one  or  two  other  States,  women  are  considered  of  full  age  at  eigh- 
teen, for  some  purposes. 

The  rule  of  law  is,  that  a  person  becomes  of  age  at  the  beginning 
of  the  day  before  his  twenty-first  birthday.  This  rule  opposes  the 
common  notion,  and  it  rests  on  no  very  good  reason,  but  on  ancient 
authority  and  constant  repetition.  The  reason  assigned  is,  that  the 
law  takes  no.  notice  of  parts  of  a  day.  The  effect  of  the  rule  is,  that 
a  person  born  on  the  9th  of  May  in  the  year  1840,  becomes  of  age 
at  the  beginning  of  the  8th  of  May,  1861,  and  may  sign  a  note,  or 
do  any  thing,  with  the  full  power  of  a  person  of  age,  on  any  hour 
of  that  day. 

The  contract  of  an  infant  (if  not  for  necessaries)  is  voidable,  but 
not  void.  That  is,  he  may  disavow  it,  and  so  annul  it,  either  before 
his  majority,  or  within  a  reasonable  time  after  it.  As  he  may  avoid 
it,  so  he  may  ratify  and  confirm  it.  He  may  do  this  by  word  only. 
But  mere  acknowledgment  that  the  debt  exists  is  not  enough. 
It  must  be  substantially ',  if  not  inform,  a  new  promise.  In  England, 
and  a  few  of  our  States,  it  is  provided  by  statute,  that  this  confirma- 
tion can  only  be  by  a  new  promise  in  writing,  signed  by  the  prom- 
isor. This  rule  seems  to  be  useful,  and  we  think  it  will  be  more 
widely  adopted. 

It  must  be  a  promise  by  the  party,  after  full  age,  to  pay  the  debt ; 
or  such  a  recognition  of  the  debt  as  may  fairly  be  understood  by  the 
creditor  as  expressive  of  the  intention  to  pay  it ;  for  this  would  be  a 
promise  by  implication.  There  are  no  particular  words  or  phrases 
which  the  law  requires  or  favors  as  a  confirmation.  No  ratification 
or  confirmation  can  be  used  in  any  action  which  was  brought  before 
the  ratification  was  made.  It  must  also  be  made  voluntarily,  and 
with  the  purpose  of  assuming  a  liability  from  which  he  knows  that 
the  law  has  discharged  him.  'And  if  it  be  a  conditional  promise,  the 
party  who  would  enforce  it  must  prove  the  condition  to  be  fulfilled. 
Thus,  if  the  plaintiff  relies  on  a  new  promise',  and  asserts  and  proves 
that  the  defendant  said,  after  full  age,  "  I  will  pay  when  I  am  able," 


OF  LNFAXTS,   OR  MINORS.  9 

he  must  also  prove  that  the  defendant  was  able  to  pay  when  the 
action  was  brought. 

If  an  infant's  contract  is  not  avoided,  it  remains  in  force.  And 
it  may  be  confirmed  without  words  ;  and  the  question  sometimes 
occurs-,  whether  confirmation  by  mere  silence,  after  a  person  arrives 
at  full  age,  prevents  him  from  avoiding  his  contract  made  during  his 
infancy.  As  a  general  rule,  mere  silence,  or  the  absence  of  dis- 
affirmance,  is  not  a  confirmation  ;  because  it  is  time  to  disaffirm  the 
contract  when  its  enforcement  is  sought. 

But  if  an  infant  buys  property,  any  unequivocal  act  of  ownership 
after  majority  —  as  selling  it,  for  example  —  is  a  confirmation  of  the 
purchase.  And,  generally,  a  silent  continued  possession  and  use  of 
the  thing  obtained  by  the  contract  is  evidence  of  a  confirmation ; 
therefore,  if  an  infant  buys  a  horse,  and  gives  his  note  for  it,  and 
after  he  is  of  age  the  seller  puts  the  note  in  suit,  the  buyer  may  re- 
turn the  horse  and  refuse  to-pay  the  note ;  but  if  he  keeps  the  horse, 
this  is  considered  evidence  of  a  confirmation  of  the  note.  The  evir 
dence  of  confirmation  is  much  stronger  if  there  be  a  refusal  to 
re-deliver  the  thing  when  it  can  be  re-delivered  ;  and  is  generally 
conclusive,  when  the  conduct  of  the  party  must  either  be  construed 
as  a  confirmation,  or,  if  not  so  construed  must  be  regarded  as  fraudu- 
lent, or  wrongful.  Thus,  where  an  infant  purchased  a  potash-kettle, 
and  gave  his  promissory  note  for  the  price,  it  being  agreed  by  the 
parties  that  he  might  try  the  kettle,  and  return  it  if  it  did  not  suit 
him ;  and  the  vendor,  after  the  infant  became  of  age,  requested  him 
to  return  the  kettle  if  he  did  not  intend  to  keep  it ;  but  he  retained 
and  used  it  a  month  or  two  afterwards.  The  court  held  that  this 
was  a  sufficient  ratification  of  the  contract,  and  that  an  action  might 
be  sustained  on  the  note. 

The  great  exception  to  the  rule  that  an  infant's  contracts  are 
voidable,  is  when  the  promise  or  contract  is  for  necessaries.  The 
rule  itself  is  for  the  benefit  and  protection  of  the  infant,  and  the 
same  reason  causes  the  exception  ;  for  it  cannot  be  for  the  benefit 
of  the  infant  that  he  should  be  unable  to  purchase  food,  raiment, 
and  shelter,  on  a  credit,  if  he  has  no  funds.  The  same  reason,  how- 
ever, enlarges  this  exception,  until  it  covers  not  only  strict  necessa- 
ries, or  those  without  which  the  infant  might  perish,  or  would  cer- 


10  OF  INFANTS,   OR  MINORS. 

tainly  be  uncomfortable,  but  all  those  things  which  are  certainly 
appropriate  to  his  person,  station,  and  means. 

There  is  no  exact  dividing  line  which  could  make  this  definition 
precise.  But  it  is  settled  that  mercantile  contracts,  as  of  partner- 
ship, purchase  and  sale  of  merchandise,  signing  notes  and  bills,  are 
not  necessaries,  and  that  all  such  contracts  are  voidable  by  the 
infant.  So,  if  he  gives  his  note  even  for  necessaries,  he  is  not 
bound  by  it ;  but  may  defend  against  it  on  the  ground  that  it  was 
for  more  than  their  true  value  ;  and  the  jury  will  be  instructed  to 
give  against  him  only  a  verdict  for  so  much  as  the  necessaries  were 
worth. 

If  he  borrows  money,  to  be  expended  in  the  purchase  of  necessa- 
ries, and  gives  his  note,  the  debt,  or  the  note,  has  been  held,  at 
law,  voidable  by  the  infant.  But  our  courts  would  now  hold  an 
infant  liable  for  such  a  debt ;  and  it  is  well  settled  that  an  infant 
is  liable  for  money  paid  at  his  request  for  necessaries  for  him  ;  and 
if  he  give  a  note  for  necessaries  with  a  surety  who  pays  it,  the  surety 
may  recover  against  the  infant. 

If  an  infant  avoid  a  contract,  he  can  take  no  benefit  from  it ; 
thus,  if  he  contracts  to  sell,  and  refuses  to  deliver,  he  cannot  demand 
the  price ;  or  if  he  contracts  to  buy,  and  refuses  the  price,  he  cannot 
demand  the  thing  sold. 

An  infant  is  as  liable  for  torts  (by  torts  or  tortious  acts  the  law 
means  wrongs  or  offences)  as  an  adult ;  and  therefore,  if  he  fraudu- 
lently represented  himself  as  of  age,  when  he  was  not,  and  so  made 
a  contract  which  he  afterwards  sought  to  avoid,  this  fraud  will  not 
prevent  his  avoiding  the  contract,  but  for  the  fraud  itself  he  is 
answerable  just  as  an  adult  would  be.  So  if  he  disaffirms  a  sale, 
for  which  he  has  received  the  money,  he  must  return  the  money ; 
because  keeping  it  would  be  a  wrong,  or  a  confirmation  of  the  sale. 
So  if  after  his  majority  he  destroys  or  puts  out  of  his  hands  a  thing 
bought  while  an  infant,  he  cannot  now  demand  his  money  back,  as 
he  might  have  done  on  tendering  the  thing  bought;  for  by  his 
disposal  of  it  he  has  acted  as  owner,  and  confirmed  the  sale. 

In  general,  if  an  infant  avoids  a  contract  on  which  he  has  ad- 
vanced money,  and  it  appears  that  he  has  received  from  the  other 
party  an  adequate  consideration  for  the  money  so  advanced,  which 


OF  INFANTS,   OK  MINORS.  11 

he  cannot  or  will  not  restore,  he  cannot  recover  back  the  money 
which  he  advanced.  But  if  an  infant  has  engaged  to  labor  for  a 
certain  period,  and,  after  some  part  %of  the  work  is  performed, 
rescinds  the  contract,  he  can  recover  for  the  work  he  has  done,  as 
much  as  that  work  was  worth. 

The  contract  of  an  infant  is  voidable  only  by  him,  or  by  those 
having  a  right  to  act  for  him,  and  not  by  the  other  party.  The 
election  to  avoid  or  confirm  belongs  to  the  infant  alone ;  and  his 
having  this  right  does  not  afiect  the  obligation  of  the  other  party. 
Therefore,  one  who  gives  a  note  to  an  infant,  or  makes  any  other 
mercantile  contract  with  him,  must  abide  by  it,  unless  the  infant 
annuls  it,  which  he  can  do  if  he  chooses  to. 

But  if  the  note  were  given  or  the  contract  made  by  a  fraud  on 
the  part  of  the  infant,  the  injured  party  has  the  same  right  of  defend- 
ing against  it  on  this  ground  as  if  the  fraudulent  party  were  not  an 
infant.  And  it  is  a  universal  rule  of  the  law,  that  no  contract  which 
is  tainted  with  fraud  is  valid  against  an  innocent  party ;  therefore,  a 
wilfully  false  representation  of  the  infant  that  he  has  reached  his 
majority  would  be  a  fraud,  and  would  enable  the  party  dealing  with 
him  to  set  the  contract  aside. 

A  father  is  bound  to  supply  an  infant  child  with  necessaries ;  and, 
if  he  does  not,  is  liable  for  their  value  to  any  person  who  supplies 
them.  And  for  these,  as  we  have  seen,  the  child  himself  is  also 
liable. 

Although  in  most  of  our  States  the  law  does  not  require  that  the 
confirmation  or  new  promise  of  an  adult,  of  a  promise  which  he 
may  avoid  because  it  was  made  by  him  when  an  infant,  must  be 
in  writing,  it  would  always  and  everywhere  be  better  and  safer  to 
have  this  new  promise  in  writing.  It  should  be  in  substantially  this 
form. 

(1.) 

I,  Henry  Thompson,  having  promised  Nathan  Green,  to  (here  describe  the 
promise,  whether  by  a  note,  or  verbally,  for  goods  bought,  or  the  like,  briefly,  but  so 
that  there  may  be  no  mistake  about  if)  and  at  the  time  of  making  that  promise  I 
was  a  minor,  -within  the  age  of  twenty-one  years,  now,  in  consideration  of  said 
promise,  I  do  hereby  confirm  and  acknowledge  the  same,  and  promise  a  full  per- 
formance and  execution  thereof.  HENKY  THOMPSON. 

8 


12  APPRENTICES. 

It  would  often  be  easier,  if  both  parties  assented,  simply  to  give 
a  new  note  for  the  amount  due.  But  it  might,  in  many  cases,  be 
better  that  the  new  promise  should  tell  the  story  of  the  old  promise 
for  which  it  is  given. 


CHAPTER    IV. 

APPRENTICE®. 

THE  contract  of  apprenticeship  is  generally  in  writing,  and  is  also 
most  frequently  by  deed,  (or  writing  under  seal)  and  is  to  be  con- 
strued and  enforced  as  to  all  the  parties,  by  the  common  principles 
of  the  law  of  contracts.  Usually,  the  apprentice,  who  is  himself  a 
minor,  and  his  father  or  guardian  with  him,  covenant  that  he  shall 
serve  his  master  faithfully  during  the  term.  And  the  master  cove- 
nants that  he  will  teach  the  apprentice  his  trade  ;  but  the  instru- 
ment is  not  made  invalid  by  the  omission  to  specify  any  trade  01 
profession  as  that  to  be  taught.  He  also  covenants  to  supply  him 
with  all  necessaries,  and  at  the  end  of  the  term,  give  him  money 
or  clothes.  Slight  informalities  would  not  make  the  instrument 
void.  Even  if  they  are  of  sufficient  magnitude  to  have  this  effect, 
the  instrument  will  prescribe  and  measure  the  claim  of  each  of  the 
parties  against  the  other,  if  they  have  lived  under  this  instrument 
as  master  and  servant.  But  the  apprentice's  consent  will  not  be 
inferred  from  his  mere  signature,  but  must  be  expressed. 

In  case  of  sickness  the  master  is  bound  to  provide  proper  medi- 
cines and  attendance.  The  master  cannot  transfer  his  trust,  or  his 
rights  over  the  apprentice.  He  has  no  right  to  employ  the  appren- 
tice in  menial  services  not  connected  with  the  trade  or  business 
which  he  has  agreed  to  teach  him.  And  when  he  neglects  to  take 
due  charge  of  the  apprentice,  the  parent's  or  guardian's  authority 
will  revive. 

The  sickness  of  the  apprentice,  or  his  inability  to  learn  or  to 


APPRENTICES.  13 

serve,  without  his  fault,  does  not  discharge  the  master  from  his 
covenants,  because  he  takes  this  liability  on  himself.  Nor  will 
such  misconduct  as  would  authorize  a  master  to  discharge  a  com- 
mon servant,  discharge  the  master  of  an  apprentice  from  his  liability 
on  his  contract.  But  if  the  apprentice  deserts  from  his  service,  and 
contracts  a  new  relation  which  disables  him  from  returning  lawfully 
to  his  master,  the  latter  is  not  bound  to  receive  him  again  if  he 
offers  to  return. 

Not  only  a  party  who  seduces  an  apprentice  from  his  service  is 
liable,  but  where  one  employs  an  apprentice  without  the  knowledge 
and  consent  of  his  master,  the  employer  is  liable  to  the  master  for 
the  services  of  the  apprentice,  although  he  did  not  know  the  fact  of 
the  apprenticeship.  It  may  be  added  that  if  an  action  be  brought 
for  harboring  an  apprentice  against  the  will  or  without  the  con- 
sent of  his  master,  the  plaintiff  is  bound  to  prove  that  the  defend- 
ant had  a  knowledge  of  the  apprenticeship.  But  a  defendant 
who  did  not  know  the  apprenticeship  when  he  hired  or  received  the 
apprentice,  and  who  being  informed  thereof  continued  to  retain  and 
harbor  him,  thereby  makes  himself  liable. 

(2.) 

A   General  Indenture  of  Apprenticeship,  as  sometimes  used  in 

New  England. 

This  Indenture,  Made  the  day  of  by  and  between  A.  B. 

of  and  C.  T).  his  son,  of  the  age  of  years,  of  the  one  part,  and 

E.  F.  of  of  the  other  part,  witnesseth,  that  the  said  C.  D.  by  and  with  the 

consent  of  the  said  A.  B.  (testified  by  his  signing  and  sealing  these  presents)  hath 
bound  out  himself  as  an  apprentice,  to  of 

To  be  taught  in  the  said  trade,  science  or  occupation  of  a  which  the  said 

R.  J.  now  uses,  and  to  live  with,  continue,  and  serve  him  as  an  apprentice  from  the 
day  of  the  date  hereof  (or  from  the  day  of  next  coming)  unto  the 

full  end  and  term  of  seven  years  from  thence  next  ensuing  and  fully  to  be  complete 
and  ended.  During  all  which  said  term  of  seven  years,  the  said  A.  B.  doth  cove- 
nant and  promise  to  and  with  the  said  K.  J.  that  he,  the  said  C.  P.  shall  and 
will  well  and  faithfully  serve  and  demean  himself,  and  be  just  and  true  to  him 
the  said  R.  J.  as  his  master  and  keep  his  secrets,  and  everywhere  willingly 
obey  all  his  lawful  commands ;  that  he  shall  do  no  hurt  or  damage  to  his  said 
master  in  his  goods,  estate,  or  otherwise,  nor  willingly  suffer  any  to  be  done  by 
others,  and  whether  prevented  or  not,  shall  forthwith  give  notice  thereof  to  his 
said  master ;  that  he  shall  not  embezzle  or  waste  the  goods  of  his  said  master, 
nor  lend  them  without  his  consent  to  any  person  or  persons  whatsoever;  that 


14  APPKENTICES. 

he  shall  not  traffic,  or  buy  and  sell,  with  his  own  goods,  or  the  goods  of 
others,  during  the  said  term,  without  his  master's  leave;  that  he  shall  not 
play  at  cards,  dice,  or  any  other  unlawful  games,  whereby  his  said  master 
may  sustain  any  loss  or  damage,  without  his  consent;  that  he  shall  not  haunt 
or  frequent  play-houses,  taverns  or  ale-houses,  except  it  be  about  his  master's 
business  there  to  be  done;  and  that  he  shall  not  at  any  time,  by  day  or  night, 
depart  or  absent  himself  from  the  service  of  his  said  master  without  his  leave ;  but 
in  all  things,  as  a  good  and  faithful  apprentice,  shall  and  will  demean  and  behave 
himself  to°his  said  master,  and  all  his,  during  the  said  term.  And  for  and  in  con- 
sideration of  the  sum  of  to  him  in  hand  paid,  &c.,  the  receipt,  &c.,  the  said 
R.  J.  doth  covenant,  promise,  and  agree  to  teach  and  instruct  his  said  apprentice, 
or  otherwise  cause  him  to  be  well  and  sufficiently  taught  and  instructed,  in  the  said 
trade  of  a  after  the  best  way  and  manner  that  he  can ;  and  shall  and  will 
also  find  and  allow  unto  his  said  apprentice  meat,  drink,  washing,  lodging  and  ap- 
parel, both  linen  and  woollen,  and  all  other  necessaries  in  sickness  and  in  health, 
meet  and  convenient  for  such  an  apprentice,  during  the  term  aforesaid ;  and  at  the 
expiration  of  the  said  term,  shall  arid  will  give  to  his  said  apprentice  (over  and 
above  his  then  clothing)  one  new  suit  of  apparel,  viz.  coat,  waistcoat  and  breeches, 
hat,  shoes  and  stockings,  and  linen,  fit  and  suitable  for  such  an  apprentice. 

In  Witness  Whereof,   The   said  parties  have  interchangeably  set  their 
hands  and  seals  hereunto.    Dated  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

(Signatures.')     (Seals.) 

(Witnesses.") 

(3.) 

Shorter  Indenture  of  Apprenticeship. 

Tliis  Indenture  Witnesseth,  That  by  and  with  the  consent  of 

hath  put  himself,  and  by  these  presents  doth  voluntarily,  and  of  his  own  free 
will  and  accord,  put  himself  Apprentice  to  to  learn  the  art,  trade,  and 

mystery  of  and  after  the  manner  of  an  Apprentice  to  serve  the  said 

for  and  during,  and  to  the  full  end  and  term  of  next  en- 

guing.  During  all  which  time  the  said  Apprentice  doth  covenant  and  promise,  that 
he  will  serve  his  master  faithfully,  keep  his  secrets,  and  obey  his  lawful  commands ; 
that  he  will  do  him  no  damage  himself,  nor  see  it  done  by  others,  without  giving 
him  notice  thereof — that  he  will  not  waste  his  goods,  nor  lend  them  unlawfully  — 
that  he  wul  not  contract  matrimony  within  the  said  term  —  that  he  will  not  play  at 
cards,  dice,  or  any  other  unlawful  game,  whereby  his  master  may  be  injured  —  that 
he  will  neither  buy  nor  sell,  with  his  own  goods  or  the  goods  of  others,  without 
license  from  his  master  —  and  that  he  will  not  absent  himself  day  nor  night  from 
his  master's  service,  without  his  leave  —  nor  haunt  ale-houses,  taverns  or  pi  Ay- 
houses,  but  hi  all  things  behave  himself  as  a  faithful  Apprentice  ought  to  do 
during  the  said  term.  And  the  said  master  on  his  part  doth  covenant  and  promise, 
that  he  will  use  the  utmost  of  his  endeavors  to  teach,  or  cause  to  be  taught  or  in- 
structed, the  said  Apprentice  hi  the  art,  trade,  or  mystery  of  and  will 


MAEKIED  WOMEN.  15 

procure  and  provide  for  him  sufficient  meat,  drink,  clothing,  lodging  and  washing 
fitting  for  an  Apprentice,  during  the  said  term,  and  will  give  him  quarters 

schooling  during  said  term. 

And  for  the  true  performance  of  all  and  singular  the  covenants  and  agreements 
aforesaid,  the  said  parties  bind  themselves  each  unto  the  other,  firmly  by  these 
presents. 

In  Witness  Whereof,  The  said  parties  have  interchangeably  set  their 
hands  and  seals  hereunto.  Dated  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

Executed  and  delivered  before 

(Witnesses.')  (Signatures.')  (Seds.) 


CHAPTER  V. 


BY  the  original  common  law  of  this  country,  a  married  woman  is 
wholly  incapable  of  entering  into  mercantile  contracts  on  her  own 
account.  By  the  fact  of  marriage,  her  husband  becomes  possessed 
of  all  her  real  estate  during  her  life,  and  if  a  living  child  be  born  of 
the  marriage,  he  has  her  real  estate  during  his  own  life,  if  he  sur- 
vive her.  This  life-right  in  her  real  estate  is  called,  in  law,  his 
tenancy  by  the  curtesy. 

All  the  personal  property  which  she  has  in  actual  possession  becomes 
by  common  law,  absolutely  his,  as  entirely  as  if  she  had  made  a 
transfer  of  it  to  him.  But  by  property  in  possession  the  law  means 
only  her  goods  and  chattels  ;  or  things  which  can  be  handled  ;  and 
which  actually  are  in  her  hands,  or  under  her  direct  and  immediate 
control.  If  she  have  notes  of  hand,  money  due  her,  or  shares  in 
various  stocks,  these  are  not  considered  as  things  in  possession,  but 
as  things  in  action. 

Things  in  possession  are  those  things  which  one  has  now  in  his 
hands,  and  things  in  action  (called  in  law  chases  in  action),  those 
which  are  so  called  because  he  who  owns  them  cannot  get  possession 
of  them  without  an  action,  if  other  persons  choose  to  resist  him. 


16  MAEB1ED  WOMEN. 

All  debts,  and  evidences  of  debt,  as  bonds,  notes,  and  all  shares  in 
stocks,  whether  national  or  State,  or  of  incorporated  companies  or 
other  companies,  are  things  in  action.  But  bank-bills  are  usually 
regarded  as  money,  and  therefore  as  things  in  possession.  The 
common  law  makes  a  wide  difference  between  these  in  many  re- 
spects. 

The  common  law  of  husband  and  wife  as  to  things  in  action  is  this. 
The  husband  may,  if  he  pleases,  reduce  them  to  his  possession,  and  so 
make  them  absolutely  his  own.  In  general,  he  does  this  by  any  act 
which  is  distinctly  an  act  of  ownership ;  as  if  he  demands  and  col- 
lects the  debts  due  to  her,  or  indorses  her  notes  —  which  he  can  do 
in  his  own  name  —  and  sells  them,  or  has  the  stock  transferred  to 
his  own  name,  or,  in  general,  makes  any  final  and  effectual  disposi- 
tion of  these  things  in  action.  Then  they  have  become  absolutely 
his  own. 

If,  however,  he  does  not  reduce  them  to  possession,  and  dies,  and 
she  survives  him,  her  whole  right  and  property  revive  at  his  death, 
without  any  interest  whatever  in  his1  representatives.  And  even  if 
he  disposes  of  them  by  will,  this  is  ineffectual,  unless  he  had  reduced 
them  into  his  possession  while  he  lived. 

If,  however,  he  survives  her,  he  will  be  made,  if  he  wishes  it,  her 
administrator,  and  then  can  collect  all  her  things  in  action,  and 
hold  them  or  their  proceeds  as  his  own.  And  if  she  dies,  and  then 
he  dies  before  he  has  collected  these  things  in  action,  administration 
on  his  wife's  effects  will  be  granted  to  his  next  of  kin,  and  not  to 
hers ;  and  when  collected,  they  will  belong  to  his  estate. 

On  the  other  hand,  the  husband  is  liable,  by  the  common  law, 
with  her,  for  all  the  debts  for  which  his  wife  was  liable  when  he 
married  her.  This  is  true  whether  they  were  then  payable,  or  did 
not  mature  until  after  the  marriage  ;  and  whether  he  received  any 
thing  with  her  or  not.  If  he  does  not  pay  them,  and  dies  before  the 
creditor  has  obtained  a  judgment  against  him,  his  estate  is  not 
liable,  even  if  he  had  a  fortune  with  her,  and  that  fortune  goes  to 
his  heirs  or  his  creditors,  and  her  creditors  get  nothing.  So  it  is  if 
the  wife  dies  before  the  creditor  recovers  a  judgment  against  the 
husband,  and  the  husband  then  retains  all  her  fortune/  But  her 
responsibility  revives  at  his  death,  and  she  is  liable  as  before  mat- 


MAKEIED  WOMEN.  17 

riage,  even  if  she  carried  him  a  fortune,  and  all  her  fortune  went, 
as  above  stated,  to  his  representatives.  But  if  she  dies,  leaving 
things  in  action  not  reduced  by  the  husband  to  possession,  and  he 
reduces  them  to  his  possession  as  her  administrator,  he  must  apply 
them  to  the  payment  of  her  debts,  and  can  hold  for  himself  only 
what  is  left  after  such  payment. 

Such,  we  have  said,  is  the  common  law  of  England  and  of  this 
country.  We  have  stated  it,  because  it  is  the  origin  and  common 
foundation  of  the  law  everywhere.  But  it  is  not  just  or  right ;  and 
there  are  few,  perhaps  no  one  of  our  States,  in  which  it  remains 
wholly  unqualified  by  statutory  provisions.  But  these  provisions 
are  very  various ;  and  in  some  of  the  States  they  change  with  almost 
every  year. 

In  nearly  all  the  States  a  married  woman  conveys  her  own  real 
estate,  and  releases  dower  by  joining  in  a  deed  with  her  husband ; 
but  she  is  not  generally  bound  by  covenants  therein,  and,  in  many, 
must  be  separately  examined.  In  most,  she  has  a  certain  time, 
after  removal  of  the  disability  of  coverture,  to  assert  her  different 
rights,  otherwise  barred.  Generally,  devises  or  conveyances  to  hus- 
band and  wife  create  a  joint-tenancy,  unless  the  terms  .of  the  devise 
or  conveyance  are  expressly  otherwise.  And,  upon  the  marriage 
of  a  woman  who  is  plaintiff  or  defendant,  the  suit  does  not  abate, 
but  the  husband  may  be  admitted  to  prosecute  or  defend  with  her. 

I  give  here  an  Abstract  of  the  law  of  husband  and  wife,  as  it 
stands  on  the  Statutes  of  the  several  States.  This  Abstract  includes 
the  homestead  provisions.  It  is  brought  down  to  the  year  1869. 


In  ALABAMA,  the  wife's  separate  estate  is  alone  liable  for  her  antenuptial  debts,  and  the 
husband  is  not  liable.  Rev.  Code  (1867),  §  2370.  All  her  property  held  before,  or  ac- 
quired after,  marriage  is  secured  to  her  separate  use.  Id.  §  2372.  The  husband  is  her 
trustee,  but  not  liable  to  account  for  the  profits.  Id.  §  2372.  She  need  not  be  of  full  age 
to  release  dower.  Id.  §  1628.  The  proceeds  of  a  sale  of  her  property  are  her  separate 
estate,  which  the  husband  may  use  as  most  beneficial  for  her.  They  cannot  contract  with 
each  other  for  the  sale  of  any  property.  Id.  §  2374.  He  may  receive  property  coming  to 
her.  Her  estate  is  liable  for  necessaries  for  the  family.  If  a  suit  therefor  is  brought  against 


18  MAEEIED  WOMEN. 

a  husband,  and  execution  is  not  satisfied,  her  separate  estate  may  be  sold  by  order  of  court 
She  may  dispose  of  her  property  by  will.  Id.  §§  2376-2378.  If  the  husband  is  unfit  to 
manage  her  estate  (or  his  estate,  or  abandons  her,  or  has  no  property  exempt  from  execu- 
tion), she  may  be  vested  with  the  powers  of  &feme  sole.  Id.  §  2384.  $1200  worth  of  real 
estate,  including  the  homestead,  and  $1000  worth  of  personal  estate,  are  exempted  from 
execution.  Id.  §  2884. 


In  ARKANSAS,  a  feme  covert  may  be  seized  in  her  own  right  of  any  property  not  coming 
from  her  husband.  Dig.  of  Ark.  Stat.  (1858),  ch.  Ill,  §  1.  Id.  ch.  68,  §  25.  Such  prop- 
erty is  not  liable  for  the  debts  of  the  husband  contracted  before  marriage.  The  homestead 
of  160  acres  of  land,  or  a  town  or  city  lot,  of  the  husband  while  living,  and  while  occupied 
by  widow  or  child  of  deceased  husband,  and  certain  specified  personal  property,  are  exempt 
from  execution.  Id.  ch.  68,  §§  29,  30.  A  married  woman  cannot  be  executrix.  Id.  ch.  4, 
§  4.  A  married  woman  cannot  make  a  will  unless  empowered  by  a  marriage-settlement, 
or  by  her  husband.  Id.  ch.  180,  §  3.  The  private  property  of  no  married  woman  is  exempt 
from  the  payment  of  debts  contracted  by  her  husband  previously  to  the  filing  of  a  sched- 
ule of  such  separate  property  in  the  office  of  the  recorder  of  the  county  where  she  lives. 
Id.  ch.  Ill,  §  7. 


In  CALIFOBNIA,  all  property  owned  before  marriage,  or  subsequently  acquired  by  gift, 
bequest,  devise,  or  descent,  by  either  party,  is  the  separate  property  of  each  ;  but  all  oth- 
erwise acquired  by  either  after  marriage  is  common  property.  An  inventory  of  the  wife's 
separate  property,  acknowledged  or  proved,  as  for  a  conveyance  of  land,  must  be  recorded  ; 
and  this  shall  be  notice  of  the  wife's  title :  and  her  property  included  therein  is  exempt 
from  seizure  on  execution  for  the  debts  of  her  husband.  He  has  the  management  and 
control  of  her  separate  property  during  marriage  ;  but  no  alienation  can  be  made,  nor  lien 
nor  encumbrance  created,  unless  she  joins  in  the  deed,  and  acknowledges  upon  a  separate 
examination.  But  when  she  sells  her  separate  property  for  his  benefit,  or  he  uses  the 
proceeds  with  her  written  consent,  it  is  deemed  a  gift ;  and  neither  she  nor  those  claiming 
under  her  can  recover.  In  certain  cases,  a  trustee  may  be  appointed  to  manage  her  prop- 
erty. The  husband  has  the  entire  control  and  management  of  the  common  property,  with 
like  absolute  power  of  disposition  as  of  his  own  separate  property ;  and  the  rents  and 
profits  of  the  separate  property  of  both  are  deemed  common  property,  unless  with  respect 
to  the  wife,  the  terms  of  the  bequest,  devise,  or  gift,  are  otherwise.  Dower  and  curtesy 
are  abolished.  Upon  the  death  of  either  party,  one-half  the  common  property  goes  to  the 
survivor,  and  the  other  half  to  the  descendants  of  the  deceased,  subject  to  the  payment  of 
his  or  her  debts ;  if  there  are  no  descendants,  the  whole  to  the  survivor,  subject  to  such 
payment  Upon  divorce,  the  common  property  is  equally  divided.  The  separate  prop- 
erty of  the  wife  is  alone  liable  for  her  antenuptial  debts.  But  the  parties  may  control 
these  provisions  by  marriage  contract,  which  must  be  in  writing  and  recorded,  or  other- 


MARKIED  WOMEN.  19 

wise  shall  not  affect  third  parties.  It  may  be  entered  into  by  a  minor,  but  cannot  alter 
the  legal  order  of  descent,  nor  derogate  from  the  husband's  rights  over  the  persons  of  his 
wife  and  children  as  head  of  the  family,  or  the  survivor's  rights  as  guardian  of  the  chil- 
dren. Compiled  Laws  of  Cal.  1850-1853,  ch.  147,  p.  812.  When  a  married  woman  is 
party  to  a  suit,  her  husband  is  to  be  joined :  except,  if  the  action  concerns  her  separate 
property,  she  may  sue  alone ;  and,  if  between  herself  and  her  husband,  she  may  sue  and  be 
sued  alone.  If  both  are  sued  together,  she  may  defend  in  her  own  right.  Id.  ch.  123,  §§  7, 
8,  p.  520.  There  is  also  a  homestead  law,  exempting  the  homestead  to  the  amount  of 
$5,000,  from  final  process  of  court;  and  it  cannot  be  alienated  without  the  wife  joins  in  the 
conveyance,  and  acknowledges  apart  from  her  husband.  Its  other  provisions  are  substan- 
tially similar  to  those  before  referred  to.  Id.  ch.  158,  p.  850.  The  wife's  real  estate  may 
be  conveyed  by  separate  deed,  if  her  husband  has  been  absent  one  year.  Laws  of  1855,  ch. 
17.  By  complying  with  certain  requirements,  she  may  cany  on,  in  her  own  name,  any 
business,  trade,  profession,: or  act;  and  the  property,  &c.,  invested  belongs  exclusively  to 
her ;  and  she  has  all  the  legal  privileges  and  disabilities  of  debtor  and  creditor,  and  becomes 
responsible  for  the  maintenance  of  her  children.  Her  husband  is  not  liable  for  her  debts 
thus  contracted  without  special  written  promise ;  and  she  shall  not  originally  invest  more 
than  $5,000,  without  taking  oath  that  the  amount  above  that  sum  did  not  proceed  from 
him.  Id.  ch.  178,  p.  881.  She  may  cause  the  life  of  her  husband  to  be  insured  for  her 
benefit.  Public  Laws  of  1854,  ch.  40.  The  personal  property  of  the  wife  can  be  sold  or 
transferred  only  when vhusband  and  wife  join  in  the  sale  or  transfer,  excepting  only  what 
she  holds  as  a  feme  sole.  Laws  of  1862,  ch.  394.  She  may  dispose  of  her  separate  prop- 
erty by  will,  in  like  manner  as  any  other  person.  Laws  of  1866,  ch.  285. 


CONNECTICUT. 

In  CONNECTICUT,  the  husband's  interest  in  wife's  real  estate  cannot  be  taken  for  his 
debts,  during  her  life  or  that  of  her  child  who  is  the  issue  of  such  marriage.  General  Stat- 
utes (1866),  304.  All  real  estate  conveyed  to  her  during  marriage,  paid  for  by  money  earned 
by  her  personal  service,  is  hers  to  her  sole  use.  And  the  proceeds  of  her  real  estate  are 
hers,  and  not  liable  for  his  debts,  where  the  price  thereof  is  invested  in  her  name  or  in  a 
trustee  for  her  use.  Personal  estate  coming  to  the  husband  in  the  right  of  the  wife,  or 
through  her  as  the  meritorious  cause,  is  held  by  him  as  trustee  for  her  use ;  excepting  so 
far  as  he  has  paid  her  debts  contracted  before  marriage ;  and  he  may  be  required  to  give 
bonds  as  such  trustee,  or  be  removed  and  another  appointed.  Her  receipt  for  money  de- 
posited by  her  in  any  bank  or  savings  bank,  or  of  money  earned  by  her  personal  services, 
is  valid.  Policies  of  insurance  on  life  for  her  benefit,  if  the  premium  does  not  exceed  $150, 
or  is  paid  from  her  private  property,  are  secured  to  her.  All  personal  property  coming  to 
her  during  his  abandonment  of  her,  or  their  separation  from  his  abuse  or  intemperance,  is 
hers  alone ;  and  he  thereby  loses  all  control  of  all  her  property.  Deed  of  sale  of  minor 
married  woman's  land,  by  order  of  Court  of  Probate,  upon  joint  application,  in  writing, 
of  herself  and  husband,  will  be  good,  as  if  she  were  of  full  age  ;  the  proceeds  of  such  being 
held  subject  to  the  direction  of  the  court.  He  may  receive,  she  being  a  minor,  her  per- 
sonal estate,  upon  filing  an  application  in  the  Probate  Court  where  the  will  was  proved,  and 
after  proof  of  marriage  and  signing  a  bond  for  the  safe  keeping  of  such  estate ;  but  no  sale 


20  MARRIED  WOMEN. 

by  him  of  his  interest  in  her  estate  is  valid  without  her  consent,  or  after  her  death  that  of 
the  guardian  of  her  heirs,  under  age,  in  writing.  During  abandonment,  she  may  transact 
business  in  her  own  name,  and  sue  and  be  sued  as  a  feme  sole.  Husband  is  not  liable  for 
wife's  debts  incurred  before  marriage,  but  is  liable  for  debts  incurred  for  support  of  wife 
and  children,  since  the  vesting  in  him  of  her  property.  She  may  be  sued  for  such  debts  as 
if  unmarried.  She  may,  with  her  husband  (both  being  of  lawful  age),  by  joint  deed  convey 
her  real  estate;  and  if  abandoned  by  him  for  three  years,  the  Superior  Court  may  give  her 
leave  to  convey  her  real  estate  by  her  sole  deed.  All  the  personal  property  of  a  married 
woman,  married  since  June  22,  1849,  and  all  that  is  acquired  by  any  married  woman 
since  that  day,  vests  in  her  husband  in  trust  for  her ;  deducting  only  what  he  has  paid  for 
her  antenuptial  debts.  Revised  Statutes,  Act  concerning  the  domestic  relations,  ch.  2, 
pp.  302-305.  If  a  married  woman  becomes  incapable  of  conveying  her  property,  the 
Court  of  Probate  may  give  power  to  her  husband,  or  other  meet  person,  to  make  such  con- 
veyance. Laws  of  1867,  ch.  19.  "When  any  married  woman  carries  on  business,  and  in- 
curs a  debt  therein,  or  makes  a  note  or  other  instrument,  for  the  benefit  of  her  sole  estate, 
she  may  be  sued  therefor,  and  her  property  taken  and  sold  on  execution,  as  if  unmarried. 
Laws  of  1869,  ch.  124.  If  a  married  woman,  residing  out  of  the  State,  becomes  incapable 
of  managing  her  affairs,  a  conservator  of  her  estate  may  be  appointed  by  the  Court  of 
Probate.  Laws  of  1870,  p.  369. 


DELAWARE. 

In  DELAWARE,  the  widow  of  one  who  made  his  will  before  marriage  takes  the  same 
share  as  if  he  died  intestate.  R.  S.  c.  84,  §  23.  Insurance  on  life  for  her  benefit  is  se- 
cured to  her,  if  the  premium  do  not  exceed  $150.  Id.  c.  76,  §  3.  If  her  husband  abandon 
her,  the  court  may  provide  for  the  support  of  herself  and  her  children  out  of  his  property, 
Id.  c.  48,  §  15.  She  cannot  make  a  power  of  attorney.  Id.  c.  83,  §  13.  Real  estate,  mort- 
gages, stocks  and  silver  plate  belonging  to  her  at  marriage,  or  acquired  during  coverture, 
are  not  subject  to  his  disposition,  or  liable  for  his  debts,  except  judgments  recovered  against 
him  for  her  liabilities  before  marriage ;  but  she  may  not  dispose  of  such  property  nor 
create  any  encumbrance  on  her  real  estate,  nor  dispose  of  the  rents  thereof,  nor  of  the  in- 
terest of  her  stock  and  mortgages,  without  his  consent  in  writing  under  seal.  This  pro- 
vision does  not  affect  him  as  tenant  by  curtcsy  ;  but  with  his  consent,  as  aforesaid,  the  pro- 
ceeds of  such  sale  as  above  authorized  may  be  invested  in  her  own  name  as  her  sole  prop- 
erty, subject  to  the  laws  governing  the  principal.  Laws  of  Delaware,  1865,  ch.  572,  §§  1, 
2,3. 


FLORIDA. 

In  FLORIDA,  the  husband  or  wife  administers  in  preference  to  others.  Thompson,  Dig. 
2  Div.  Tit.  3,  ch.  2,  §  1,  ^  5.  Their  rights,  by  marriage,  under  the  Spanish  law  when  in 
force,  are  preserved.  Id.  2  Div.  Tit.  3,  ch.  1,  §  4  ;  2  Div.  Tit.  3,  ch.  1,  §  2,  T  1.  The 
wife  retains  independent  of  her  husband,  and  is  not  liable  for  his  debts  (if  inventoried  and 
recorded ;  but  failure  to  record  confers  no  rights  upon  him,  id.  2  Div.  Tit.  5,  ch.  1,  §  2. 


MAREIED  WOMEN.  21 

T  8),  all  property  owned  before,  or  obtained  after,  marriage  ;  but  he  has  the  management 
of  it.  She  cannot  sue  him  for  rent,  nor  can  he  sue  her  for  management  Her  property 
alone  is  liable  for  her  antenuptial  debts  ;  and,  upon  her  death,  he  takes  the  same  interest 
in  her  property  as  a  child ;  but,  if  she  leaves  no  child,  the  whole.  Id.  2  Div.  Tit.  5,  ch.  1, 
§  2.  A  homestead  of  forty  acres,  if  ten  of  it  be  cultivated,  is  exempted  from  execution. 
Id.  3  Div.  Tit  5,  ch.  8,  §  3.  Laws  of  Florida,  1869.  "Every  person  of  the  age  of  twenty- 
one  years,"  of  sound  mind,  may  make  a  will.  Id.  2  Div.  Tit.  3,  ch.  1,  §  1,  \  1.  Certain 
provisions  of  the  criminal  code  are  extended  to  married  women.  Laws,  1868,  ch.  4.  §  6. 


GEORGIA. 

In  GEORGIA,  marriage-settlements,  if  not  recorded  within  three  months  after  execution, 
&t^  invalid  as  to  lonafide  purchasers,  creditors,  or  sureties  without  actual  notice,  becoming 
so  before  actual  recording.  Code,  ed.  of  1867,  p.  354.  The  husband  takes  administra- 
tion, and  is  sole  heir  of  his  deceased  intestate  wife.  Id.  p.  351.  On  the  death  of  the 
husband  without  issue,  the  wife  is  the  sole  heir.  Id.  p.  351.  The  wife  of  an  idiot  or  luna- 
tic is  generally  entitled  to  the  guardianship.  Id.  p.  370.  If  deserted,  her  earnings  vest  in 
herself.  Id.  p.  351.  By  an  act,  approved  February  28, 1856,  Laws  of  1855-6,  Tit.  19,  No. 
176,  p.  229,  a  husband  married  thereafter  is  not  liable  for  his  wife's  debts,  further  than  the 
property  received  through  her  will  satisfy ;  and  such  property  is  not  liable  for  his  debts 
existing  at  the  time  of  the  marriage.  A  married  woman  may  deposit  in  any  savings  in- 
stitution any  sum  not  more  than  $2,000,  the  earnings  of  herself  or  children,  as  her  own 
separate  property,  as  if  she  were  unmarried.  Laws  of  Georgia,  1865-66,  Tit.  26,  §§  1, 
2.  All  her  property,  whether  belonging  to  her  at  marriage,  or  acquired  during  cover- 
ture, vest  in  her,  and  is  not  liable  for  any  debt,  default,  or  contract  of  her  husband.  Id. 
p.  350. 


ILLINOIS. 

In  ILLINOIS,  there  is  a  homestead  law,  similar  in  its  purposes  to  those  before  mentioned, 
exempting  the  homestead  to  the  value  of  $1,000.  It  continues  after  the  death  of  the 
householder,  for  the  benefit  of  the  widow  and  family,  if  one  of  them  occupies  the  same, 
until  the  youngest  child  is  twenty-one  years  of  age,  and  the  death  of  the  widow.  Gross 
statutes,  1869,  p.  327.  When  real  or  personal  estate  is  held  for  her  by  trustees,  not  coupled 
with  an  interest  in  any  other  person  than  the  married  woman  for  whom  it  is  held,  she  may, 
on  the  death  of  such  trustees,  hold  and  convey  in  her  own  name ;  and  the  property  is  not 
liable  for  his  debts.  Gross  Statutes  of  Illinois,  1870,  pp.  327,439.  All  the  property,  real 
and  personal,  belonging  to  a  married  woman  at  the  time  of  her  marriage,  or  afterwards 
acquired  or  earned,  is  held  by  her  as  if  she  -were  a  feme  sole,  and  is  not  subject  to  the 
control  or  debts  of  her  husband.  Id.  p.  439.  She  may,  for  her  own  sole  benefit  or  that 
of  her  children,  insure  the  life  of  her  husband.  If  she  lives  apart  from  him  without  her 
fault,  the  court  may  require  him  to  give  her  a  reasonable  support.  Id.  p.  439.  She  may 
join  with  the  guardian  of  an  idiot  or  lunatic  husband  in  making  a  conveyance.  Id.  440. 


22  MARRIED  WOMEN. 

All  her  earnings  are  her  own,  free  from  the  control  of  her  husband ;  and  she  may  sue  for 
them  in  her  own  name.    Id.  p.  440. 


In  INDIANA,  the  husband  is  liable  for  her  antenuptial  debts  only  to  the  extent  of  the 
personal  property  he  received  with  her,  or  from  the  sale  or  rent  of  her  lands.  Gavin 
and  Herd's  Statutes  of  Indiana  (1862),  vol.  1,  p.  373.  And  such  liability  is  not  extin- 
guished by  her  death.  Id.  §  2.  Her  Christian  name  is  sufficient  in  a  suit  against  them 
jointly.  Cox  v.  Eunnion,  5  Blackf.  176.  Her  admissions  subsequent  to  marriage  are  not 
admissible  in  a  suit  against  them  jointly  for  a  debt  of  hers  while  single.  Brown  v. 
Lasselle,  6  Blackf.  147  ;  Lasselle  v.  Brown,  8  id.  221.  Process  need  only  be  served  on  the 
husband  when  subsequent  proceedings  are  against  both.  Campbell  v.  Baldwin,  6  id.  364  ; 
King  v.  McCampbell,  id.  435.  The  husband  is  a  proper  party  to  a  scire  facias,  on  a  judge'8 
transcript  of  judgment  against  the  wife  while  single.  Campbell  v.  Baldwin,  supra.  The 
plaintiff  must  prove  marriage  in  assumpsit  against  both  on  a  note  of  wife  before  marriage, 
when  non-assumpsit  is  pleaded.  "Wallace  v.  Jones,  7  id.  321.  They  should  sue  separately 
in  an  action  for  libel  upon  both.  Hart  v.  Crow,  id.  351.  As  to  the  wife's  agency,  see 
Casteel  v.  Casteel,  8  id.  240.  Judgment  against  them  jointly  for  tort  of  wife  must  be 
satisfied  first  from  her  lands,' if  she  have  any.  Id.  p.  374.  Her  lands  are  not  liable  for 
her  husband's  debts,  but  remain  her  separate  property ;  but  she  cannot  encumber  or  convey 
them  except  by  deed,  in  which  her  husband  must  join.  Id.  p.  374.  Baraett  v.  Goings,  8 
Blackf.  284.  Suits  relative  thereto  should  be  in  the  name  of  both ;  if  separated,  in  her 
name,  in  which  case  the  husband  is  not  liable  for  costs.  Id.  p.  375.  The  wife  cannot  sue, 
or  defend  by  guardian  or  next  friend,  unless  under  twenty-one.  Id.  p.  371.  There  are 
special  provisions  as  to  powers  of  a  wife  if  abandoned  by  her  husband.  Id.  p.  375.  If  a 
husband  die,  testate  or  intestate,  one-third  of  his  real  estate  goes  to  his  wife  in  fee  simple, 
free  from  all  demands  of  creditors  ;  but  if  the  real  estate  exceeds  in  value  ten  thousand 
dollars,  she  takes,  as  against  creditors,  only  one-fourth  ;  and  if  it  exceeds  twenty  thousand 
dollars,  only  one-fifth.  Id.  p.  294.  If  she  die,  one-third  of  her  real  estate  goes  to  him.  Id. 
295.  If  a  husband  or  wife  die  intestate  and  without  a  child,  the  whole  estate  goes  to  the 
survivor.  Id.  p.  290.  Three  hundred  dollars  in  value  of  real  or  personal  property,  or 
both  at  the  election  of  the  debtor,  is  exempt  from  execution.  Id.  Gavin  and  Herd's 
Statutes,  vol.  2,  p.  363. 


IOWA. 

In  IOWA,  the  personal  property  of  the  wife  does  not  vest  at  once  in  the  husband,  but,  if 
left  under  his  control,  will,  in  favor  of  third  persons  acting  in  good  faith  and  without 
knowledge  of  the  real  ownership,  be  presumed  to  have  been  transferred  to  him.  But  she 
may  avoid  such  surrender  by  filing  for  record  a  notice  stating  the  amount  of  such  prop- 
erty, and  that  she  has  a  claim  therefor;  and  if,  during  her  lifetime,  he  dies  or  becomes  in- 


MAKEIED  WOMEN.  23 

solvent,  she  is  deemed  a  preferred  creditor  to  that  amount,  without  interest,  but  not  as  to 
creditors  without  knowledge,  who  become  such  after  the  property  is  placed  under  the 
husband's  control,  and  before  the  filing  of  such  notice.  The  wife  must  prove  the  amount 
of  such  property ;  but  after  five  years  the  notice  is  presumptive  evidence.  Property  which 
ordinarily  passes  only  by  written  evidence  of  transfer  is  presumed,  without  notice,  to 
belong  to  the  wife,  unless  she  received  it  from  the  husband.  He  is  not  liable  upon  con- 
tracts relative  to  her  separate  property  or  purporting  to  bind  herself  alone,  nor  is  her  pro- 
perty or  income  liable  for  his  debts.  '  Family  expenses,  education  of  children,  &c.,  are 
chargeable  upon  the  property  of  both  or  either ;  they  may  be  sued  jointly,  or  the  husband 
separately.  When  abandoned  by  her  husband,  the  wife  may  obtain  permission  to  act  as  if 
sole,  and  to  dispose  of  a  portion  of  his  property,  and  collect  debts  due  him  ;  and  the  hus- 
band, in  like  case,  may  obtain  similar  power  over  her  property.  Rev.  St.  of  1860,  pp.  425, 
426.  He  cannot  remove  the  wife  or  children  from  the  homestead  without  their  consent. 
Id.  427.  The  estate  by  the  curtesy  is  abolished,  and  the  husband  is  entitled  to  the  same 
rights  of  dower  as  the  wife.  Id.  p.  420.  When  judgment  is  against  husband  and  wife, 
execution  may  issue  against  the  property  of  either  or  both.  Id.  p.  600.  If  both  are  sued 
jointly,  the  wife  may  defend  for  her  own  right,  or  for  her  husband's  right  also.  Id.  p. 
491.  A  married  woman  may  receive  gifts  or  grants  from  her  husband  without  the  inter- 
vention of  a  trustee.  Id.  p.  388.  There  is  also  a  homestead  exemption  law,  to  the  extent 
of  a  town  plat  of  half  an  acre ;  or,  if  not  within  a  town,  of  forty  acres,  or  enough  more 
to  make  a  value  of  five  hundred  dollars.  Id.  403. 


KANSAS. 

In  KANSAS,  the  property,  real  or  personal,  of  a  married  woman,  owned  at  the  time 
of  her  marriage  or  subsequently  received,  is  her  sole  and  separate  property,  not  subject  to 
the  disposal  of  her  husband,  nor  liable  for  his  debts.  Gen.  St.  (1868),  p.  562.  She 
may  sell  and  convey,  or  enter  into  any  contract  relating  thereunto,  and  may  sue  and  be  sued 
as  if  sole.  Id.  p.  563.  She  cannot  bequeath  more  than  half  of  her  property  away  from  her 
husband  without  his  written  consent.  Id.  1113.  If  either  die  intestate  and  without  issue, 
all  his  or  her  property  goes  to  the  survivor.  Id.  pp.  394-395.  If  a  husband  deprives  his 
wife  by  will  of  more  than  half  his  property,  she  may  elect  to  accept  the  conditions  of  his 
will,  or  take  half  of  his  property.  Id.  p.  1113.  Dower  and  curtesy  are  abolished.  Id. 
1113.  A  homestead  of  one  hundred  and  sixty  acres  of  land,  or  one  acre  in  a  city,  town, 
or  village,  is  exempted  from  sale  by  execution.  Id.  p.  473. 


KEISTXUCKY. 

In  KENTUCKY,  the  husband  has  no  interest  in  the  real  estate  or  chattels  of  the  wife, 
except  the  use  of  them,  with  power  to  let  out  to  rent  real  estate  for  three  years  at  a  time, 
E.  S.  of  Kentucky,  ch.  47,  art.  2,  §  1.  Such  estate  is  only  liable  for  her  antenuptial 


24  MARRIED  WOMEN. 

debts,  and  for  necessaries  for  the  family,  the  husband  included.  Id.  Her  chattels  real 
may  be  conveyed  in  the  same  way  as  land,  and  the  proceeds  go  to  the  husband,  unless 
otherwise  provided.  Id.  §  2.  He  is  not  liable  for  her  antenuptial  debts  except  to  the 
amount  received  by  her  independent  of  real  estate  or  slaves.  Id.  §  3.  Provision  exists 
for  a  married  woman's  acting  as  feme  sole  in  case  of  abandonment,  imprisonment  of  hus- 
band, &c.  Id.  §  4.  The  wife  of  a  non-resident  husband  may  act  as  a  feme  sole.  Id.  §  8. 
An  alien  wife  of  a  citizen  husband  may  inherit  property,  ch.  15,  art.  3,  §  3.  The  deeds 
of  a  feme  covert  may  bo  either  joint  or  separate,  ch.  24,  §  21 ;  and  must  be  separately 
acknowledged.  Id.  §  22.  For  various  provisions  relating  to  dower,  see  ch.  30.  Mar- 
riage-agreements must  be  recorded,  ch.  24,  §  9.  The  husband's  remedy  against  the  wife's 
tenant  is  the  same  after  her  death  as  before,  ch.  56,  art.  2,  §  25.  She  has  the  general 
rights  of  an  unmarried  woman  in  regard  to  stock  held  for  her  exclusive  use.  Id.  §  1G. 
Real  or  personal  estate  conveyed  or  devised  to  her,  except  as  a  gift,  cannot  be  aliened 
without  the  consent  of  her  husband.  Id.  §  17.  Provision  exists  for  the  sale  of  married 
woman's  property,  ch.  86,  art.  1,  5,  6.  A  married  woman  may  dispose  of  her  separate 
property  by  will,  or  execute  a  power,  ch.  106,  §  4.  Wills  are  revoked  by  a  subsequent 
marriage,  except  when  made  under  power  of  appointment,  when  the  estate  would  not,  in 
default  of  such  appointment,  go  to  the  heirs.  Id.  §  9.  She  may  deposit  in  bank  and 
check  as  if  sole ;  but  rights  of  third  parties  are  not  affected  if  bank  has  notice.  Supple- 
ment 1866,  p.  727.  When  there  is  no  appearance  of  fraud,  on  joint  application  of  hus- 
band and  wife,  Court  may  empower  her  to  use,  sell  and  convey,  for  her  own  benefit,  any 
property  she  may  own  or  acquire ;  and  to  trade  in  her  own  name  as  a  feme  sole,  and  dis- 
pose of  her  property  by  deed  or  by  will ;  and  in  all  cases  it  is  free  from  the  debts  of  her 
husband  and  liable  for  her  own.  Id.  p.  728. 


H.OTJISIAJVA. 

In  LOUISIANA,  the  wife  cannot  appear  in  court  without  the  authority  of  her  husband, 
though  she  may  be  a  public  merchant,  or  hold  her  property  separate  from  him.  Even 
then,  she  cannot  alienate,  mortgage,  or  acquire  by  gratuitous  or  unencumbered  title 
without  his  written  consent.  She  may  be  authorized  by  the  judge  of  probate  upon  his 
refusal,  and  if  separated  from  bed  and  board,  has  no  need  of  the  authorization  of  her 
husband.  If  a  public  merchant,  she  may  without  being  empowered  by  him  obligate  her- 
self in  any  thing  relating  to  her  trade ;  her  husband  is  also  bound,  if  there  is  a  commu- 
nity of  property.  She  is  considered  a  public  merchant,  if  she  carries  on  a  separate  trade, 
but  not  if  she  retails  only  the  merchandise  of  the  commerce  carried  on  by  him.  If  the 
husband  is  under  interdiction,  or  absent,  the  judge  may  authorize  her  to  act  as  if  unmar- 
ried. She  may  make  a  will  without  his  authority.  Civil  Code,  art.  121-132,  1239,  1467, 
1779.  But  she  cannot  become  an  executrix  without  his  consent  or  the  court's.  Id.  art. 
1757.  She  may  act  as  a  mandatary.  Id.  art.  1780.  Neither  party  can  be  a  witness  for 
or  against  the  other.  Id.  art.  2260.  They  may,  by  marriage-contract,  determine  the 
rights  of  property.;  but  cannot  change  the  legal  order  of  descents  (this  restriction  not 
affecting  donations  inter  vivos  or  mortis  causa,  or  donation  by  the  marriage-contract  ac- 
cording to  the  rules  for  donations  inter  vivos  or  mortis  causa),  nor  derogate  from  the  hus- 


MARRIED  WOMEN.  25 

band's  rights  over  the  person  of  his  wife  and  children,  or  as  head  of  the  family,  nor  with 
respect  to  children  if  he  survive  the  wife,  nor  from  the  prohibitory  dispensations  of  the 
Code.  Id.  art.  2305-2307,  2316.  The  property  of  married  persons  is  divided  into 
"separate"  and  "common;"  and  the  separate  property  of  the  wife  into  "dotal"  and 
"cxtra-dotal "  or  "  paraphernal."  The  "dotal"  is  that  which  the  wife  brings  to  the 
husband  to  assist  him  in  bearing  the  expenses  of  the  marriage-establishment.  Id.  art.  2314, 
2315,  2317.  Full  provisions  exist  as  to  the  settlement,  administration,  recovery,  subject- 
matter,  &c.,  of  dowry,  and  the  rights  of  both  parties  therein,  effect  of  insolvency  of  the 
husband,  marital  portion,  &c.,  id.  art.  2317-2354,  2358,  2359  ;  as  to  the  administration, 
fruits,  &c.,  of  the  extra-dotal  effects.  Id.  art.  2360-2368.  The  wife  has  a  legal  mortgage 
on  her  husband's  immovables  (which  he  may  release  by  giving  a  special  mortgage  to  the 
satisfaction  of  a  family  meeting,  &c.,  or  in  accordance  with  stipulations  in  the  marriage- 
contract)  ;  but  it  shall  not  be  lawful  to  stipulate  that  no  mortgage  shall  exist,  id.  art 
2357;  R.  S.  (1856),'p.  242,  Tit.  Husband  and  Wife;  and  a  privilege  on  his  immovables 
for  the  restitution  of  her  dowry,  £c.  Id.  art.  2355-2357,  2367,  3182,  3187.  This  is  in 
lieu  of  dower,  id.  art.  3219,  and  is  seventh  in  the  order  of  preference.  Id.  art.  3221.  A 
partnership,  or  community,  of  acquets  or  gains  exists  by  operation  of  law  in  all  cases. 
But  the  parties  may  modify  or  limit  it,  or  agree  that  it  shall  not  exist ;  in  which  case 
there  are  provisions,  preserving  to  the  wife  the  administration  and  enjoyment  of  her 
property  and  the  power  of  alienating  it  as  if  paraphernal,  with  reference  to  the  expenses 
of  the  marriage  and  liability  of  the  husband.  Id.  art.  2312,  2369,  2370,  2393-2398.  This 
community  consists  of  the  profits  of  all  the  effects  of  which  the  husband  has  the  adminis- 
tration and  enjoyment,  either  of  right  or  in  fact ;  of  the  produce  of  the  reciprocal  industry 
and  labor  of  both  husband  and  wife ;  and  of  the  estates  which  they  may  acquire  during 
marriage,  either  by  donations  made  jointly  to  them  both,  or  by  purchase,  or  in  any  simi 
lar  way,  even  though  the  purchase  be  in  the  name  of  one  and  not  of  both.  Debts  con- 
tracted during  marriage  enter  into  this  partnership,  and  must  be  acquitted  out  of  tho 
common  fund;  but  those  contracted  before  marriage,  out  of  individual  effects.  The 
husband  is  the  head  and  master  of  the  community ;  administers  its  effects,  disposes  of  the 
revenue,  and  may  alienate  by  an  unencumbered  title,  without  the  wife's  consent.  Id.  art 
2371-2373.  There  are  special  provisions  as  to  conveyances  and  dispositions  of  the  com- 
munity property  and  gains ;  effect  of  dissolution  of  marriage ;  ability  of  the  wife  to 
exonerate  herself  from  debts  contracted  during  marriage  by  renouncing  the  partnership ; 
effect  of  such  renunciation;  death;  survivorship;  separation  a  mensa  etthoro;  separation 
of  property  during  coverture;  rights  of  creditors,  &c.,  id.  art.  2373-2392,  2398-2412;  R. 
S.  1856,  p.  242,  Tit.  Husband  and  Wife ;  the  absence  of  one  party.  Code,  art.  65. 
Either  party,  by  marriage-contract  or  during  marriage,  may  give  to  the  other  all  he  or 
she  might  give  to  a  stranger.  R.  S.  1856,  p.  79,  §  17.  Property  acquired  in  the  State 
by  non-resident  married  persons,  whether  the  title  is  in  the  name  of  either  or  in  their 
joint  names,  is  subject  to  the  same  provisions  as  if  owned  by  citizens  of  the  State.  R.  S. 
p.  103.  If  husband  or  wife  die  intestate,  without  ascendants  or  descendants,  his  or  her 
share  in  the  community  property  is  held  by  the  survivor  in  usufruct  for  life ;  if  the  de- 
ceased intestate  leave  issue  of  the  marriage,  the  survivor  holds  such  issue's  inheritance  in 
usufruct  till  death  or  second  marriage.  R.  S.  pp.  103,  104.  A  married  woman,  in  certain 
cases,  may  be  authorized  to  contract  debts  and  give  mortgages ;  or  renounce  her  rights  in 
favor  of  third  persons;  or  appoint  an  agent.  R.  S.  pp.  560,  561,  Tit.  Woman. 


26  MAEEIED  WOMEN. 


MAUVE. 


In  MAINE,  a  married  woman  holds  as  her  separate  property  whatever  she  possessed 
before  marriage,  and  whatever  comes  to  her  after  marriage,  unless  purchased  by  the 
husband's  money  or  coming  from  him  so  as  to  defraud  his  creditors,  Acts  of  1855,  ch. 
117 ;  and  has  all  the  usual  rights  of  a  single  woman  as  to  it,  R.  S.  ch.  115,  §  82  ;  Acts  of 
1855,  ch.  120,  but  cannot  convey  property  received  through  the  husband  or  his  relatives 
unless  he  join.  Acts  of  1856,  ch.  250.  Her  property  is  alone  liable  for  her  debts  before 
marriage.  Acts  of  1852,  ch.  291.  Although  under  twenty-one  years,  she  is  of  full  age. 
Id.  There  are  provisions  as  to  a  married  woman  being  administratrix,  or  executrix, 
R.  S.  ch.  106,  §  35 ;  guardian,  R.  S.  ch.  110,  §  24 ;  insane,  id.  ch.  112,  §  1 ;  Acts  of  1853, 
ch.  6  ;  whose  husband  is  under  guardianship,  Acts  of  1853,  ch.  33  ;  and  the  homestead,  to 
the  value  of  $500,  is  not  liable  for  his  debts,  and  goes  to  his  widow  and  minor  children. 
Acts  of  1850,  ch.  207.  Real  estate  may  be  conveyed  to  a  wife  by  her  husband  as  security 
for  a  bond  fide  debt,  and  this  maybe  conveyed  by  her  without  his  being  joined  in  the 
deed.  Acts  and  Resolves,  1863,  ch.  214.  Letters  of  administration  may  be  granted  on 
her  estate,  and  all  debts  contracted  for  her  benefit  shall  be  paid  by  her  executor  and 
allowed  him.  She  may  engage  in  trade  on  her  own  account,  and  any  contract  made  by 
her  is  valid,  and  her  property  is  liable  to  execution  for  her  debts ;  his  property  is  exempt 
in  any  such  case  unless  he  were  a  party  to  the  contract.  Id.  ch.  77, 148 ;  Acts  of  1866,  ch. 
52.  A  homestead  not  exceeding  in  value  $500  is  exempted  from  execution.  R.  V.  p.  502. 


MABYLA.WP. 


In  MABYLAND,  if  a  married  infant  unite  with  her  husband  in  a  conveyance  to  release 
(fower,  courts  of  equity  may  declare  it  valid  if  equitable.  Dorsey,  Laws  of  Md. ;  Public 
Acts  of  1832,  c.  302,  §  7.  She  cannot  be  executrix  or  administratrix  unless  her  husband 
give  a  bond.  Id. ;  Public  Acts  of  1798,  c.  101,  Sub.  c.  4,  §  8.  Her  choses  in  action,  at 
her  death,  become  her  husband's  without  his  taking  out  letters  of  administration.  Id. 
Sub.  c.  5,  §  8.  An  alien  wife  of  a  citizen  husband  residing  in  the  United  States,  has  her 
dower,  and  may  hold  lands  by  purchase  and  transfer  the  same  as  if  a  citizen.  Id. ;  Public 
Acts  of  1813,  c.  100.  Any  devise  or  bequest  to  her  is  construed  to  be  in  bar  of  her 
dower,  unless  otherwise  expressed.  Id.;  Public  Acts  of  1798,  c.  101,  Sub.  c.  13,  §§  1,  3. 
Insurance  on  life  is  secured  to  her,  if  the  premium  do  not  exceed  $300.  Public  Acts  of 
1840,  c.  212.  Her  receipt  for  money  deposited  before  her  marriage  in  any  bank,  is  valid, 
if  no  creditor  of  the  husband  has  previously  attached  it.  Public  Acts  of  1853,  c.  335. 
Married  woman  may  make  a  will  with  consent  of  her  husband  subscribed  if  she  have  been 
examined  apart ;  not  to  apply  to  property  acquired  after  the  adoption  of  this  code.  Code 
1860,  p.  686.  Her  property  belonging  to  her  at  marriage  or  acquired  during  coverture  is 
not  liable  for  his  debts,  but  she  holds  it  for  her  separate  use  the  same  as  if  sole.  She  may 
convey  by  joining  with  her  husband.  Property  passing  from  him  to  her  after  coverture 


HARRIED  WDMEX.  27 


if  in  fraud  of  creditors  is  void.  If  she  die  intestate  leaving  children,  he  has  a  life  estate  in 
both  real  and  personal  property  ;  but  if  she  leave  no  children  his  life  estate  in  her  real  and 
personal  property  vests  in  him  absolutely.  Code  1860,  p.  325,  §§1,2  and  7.  It  is  not 
necessary  for  her  to  have  a  trustee  to  secure  the  separate  use  of  her  property,  but  she  may 
make  one  by  joining  to  a  deed  with  her  husband.  When  there  is  none  she  may  sue  by 
her  next  friend.  Id.  325,  §  14.  She  has  dower  in  lands  held  by  equitable  title  of  her 
husband.  If  he  be  convicted  of  bigamy  she  is  at  once  endowed  of  one-third  of  his  real 
estate,  with  like  remedy  for  its  recovery  as  in  other  cases,  and  to  one-third  of  his  personal 
estate  as  if  he  had  died  intestate.  He  in  such  case  forfeits  his  title  to  curtesy,  and  his 
claim  to  any  estate  personal  or  mixed  which  he  might  have  in  her  right.  She,  on  such 
conviction,  forfeits  dower,  and  her  share  of  the  personal  estate.  Id.  p.  207,  §11.  If 
leases  for  a  definite  term  or  renewable  forever  are  made  to  her,  the  rent  of  which  shall  be 
unpaid  for  the  space  of  ninety  days,  she  may  levy  upon  the  holders  of  such  lease  by  dis- 
tress, or  bring  an  action  for  the  recovery  of  the  premises.  She  may  bind  herself  and 
assigns  by  covenants  running  with  the  land  as  if  a  feme  sole.  Laws  of  Md.  1867,  p.  427, 
§§  1,  2.  She  may  release  her  right  of  dower  in  real  estate,  by  joint  or  separate  deed. 
Id.  327,  §  11. 


MASSACHUSETTS. 

In  MASSACHUSETTS,  provisions  exist  for  the  benefit  of  the  wife  when  deserted  by  the 
husband  (R.  S.  ch.  77),  to  a  great  extent  superseded  by  the  Laws  of  1855,  ch.  304,  post. 
A  married  woman  coming  into  the  State,  whose  husband  never  lived  with  her  in  the 
State,  has  the  same  rights  as  a  single  woman  in  matters  of  contract  and  suit.  K.  S.  ch. 
77,  §  18 ;  Gregory  v.  Paul,  15  Mass.  31 ;  Abbott  v.  Bayley,  6  Pick.  89.  Antenuptial  con- 
tracts in  favor  of  the  wife  are  valid,  and  she  may  receive  any  conveyance  (except  from  her 
husband),  bequest,  or  devise  to  her  own  use,  without  a  trustee,  and  has  all  the  powers 
respecting  it  a  trustee  would  have,  and  is  liable  for  any  contract  made  or  wrong  done 
before  marriage.  Laws  of  1845,  ch.  208.  A  woman  married  after  June  4,  1845,  holds,  as 
a  single  woman  might,  all  property  held  before  marriage  or  subsequently  acquired,  except 
by  gift  from  her  husband  ;  but  cannot  convey  real  estate  (except  for  a  term  not  exceeding 
one  year),  nor  shares  in  a  corporation,  without  the  written  assent  of  her  husband,  or  the 
consent  of  a  judge  of  the  Supreme  Court,  Court  of  Common  Pleas,  or  Probate,  nor  be- 
queathe  away  from  her  husband  more  than  half  her  personal  estate,  without  his  consent  in 
writing,  and  her  property  is  alone  liable  for  her  antenuptial  debts.  Any  married  woman 
may  dispose  by  will  of  her  real  estate,  but  cannot  thereby  deprive  her  husband  of  his  ten- 
ancy by  the  curtesy ;  and  her  real  estate  and  shares  in  a  corporation  are  not  liable  for  his 
debts  contracted  since  June  4,  1855.  And  any  married  woman  may  be  a  sole  trader. 
Laws  of  1855,  ch.  304.  There  are  also  provisions  as  to  guardianship,  R.  S.  ch.  77,  79, 
and  insanity,  Laws  of  1855,  ch.  233;  1856,  ch.  99,  169.  A  homestead  to  the  value  of 
$500,  is  not  liable  for  the  debts  of  a  householder,  but  after  his  death  is  for  the  benefit  of 
his  widow  and  family,  for  her  life  and  while  any  child  is  a  minor,  provided  it  be  desig- 
nated in  the  deed  of  purchase  as  a  homestead  under  this  act,  or  if  already  purchased,  be 
so  declared  in  a  deed  acknowledged  and  recorded,  and  is  safe  only  from  debts  contracted 
after  the  record,  and  is  not  exempt  from  taxes,  debts  incurred  by  purchase,  and  debts  for 

4 


28  MARRIED  WOMEN. 

ground-rent  of  land  upon  which  it  is  situated.  This  exemption  shall  not  defeat  any  lien 
or  encumbrance  existing  when  the  law  was  passed.  A  husband  cannot  convey  such 
homestead  without  his  wife  joins  in  the  deed.  Laws  of  1851,  ch.  340.  If  a  man  dies  tes- 
tate, leaving  a  widow,  she  may  at  any  time  within  six  months  after  probate  of  the  will, 
file  in  the  probate  office  her  waiver  of  the  provisions  made  for  her  in  the  will ;  and  shall  be 
thereupon  entitled  to  such  portions  of  his  real  and  personal  estate,  as  she  would  have 
been  entitled  to  if  her  husband  had  died  intestate.  But  she  takes  only  for  life  her  share 
of  the  personal  property,  over  ten  thousand  dollars.  Acts  and  Res.  1861,  ch.  1.  Married 
woman  doing  business  on  her  own  account  must  file  a  certificate  in  Clerk's  Court,  giving 
name  of  husband,  nature  and  place  of  business ;  if  she  neglects,  her  husband  may  file  one ; 
and  in  case  both  neglect  so  to  do,  then  the  woman  shall  not  be  allowed  to  claim  any 
property  employed  in  the  business,  as  against  her  husband's  creditors ;  and  he  shall  be 
liable  on  all  contracts  made  in  the  prosecution  of  such  business.  Laws  and  Res.  1862, 
ch.  198.  By  Act  of  1863,  id.  ch.  165,  married  women  are  prohibited  from  entering  into 
co-partnership  in  business  with  any  person.  Policies  of  insurance  made  payable  to  her 
or  to  any  one  in  trust  for  her,  whether  by  her  husband  or  any  other  person,  shall  enure 
to  her  separate  use,  and  that  of  her  children,  independently  of  her  husband,  the  person 
assigning,  or  the  creditors  of  either.  But  if  the  premium  be  paid  with  an  intent  to  de- 
fraud creditors,  an  amount  equal  to  such  premium  shall  enure  to  the  benefit  of  the  cred- 
itors, subject  to  Statute  of  Limitations.  Id.  1864,  ch.  197.  Any  accumulation  of  income 
of  an  estate  held  in  trust  for  her,  in  the  hands  of  trustees,  or  which  has  been  received  by 
her  and  invested  together  with  the  accumulations  thereof,  may  be  disposed  of  by  her 
during  her  lifetime,  or  by  will  or  appointment  to  take  effect  after  her  death,  and  with  her 
written  consent  trustees  may  hold  or  invest  such  income  on  the  same  trusts  as  the  princi- 
pal estate  is  held.  She  may  be  a  witness  when  contract  was  made  by  her  in  the  absence 
of  her  husband.  Supplement  to  Gen.  Stats,  p.  270.  Id.  407.  Her  earning  not  held  by 
trustee  process  for  his  debts.  Laws  of  1868,  ch.  95.  She  may,  with  the  consent  of  her 
husband,  executrix,  administratrix,  guardian,  or  trustee,  and  act  therein,  and  hold  and  be 
held  as  if  unmarried.  Laws  of  1869,  ch.  409 


MICHIGAN. 


In  MICHIGAN,  if  a  husband  abandons  his  wife,  or  is  in  the  State  prison,  she  may  be  au- 
thorized, if  of  age,  to  act  and  be  liable,  in  general,  as  a  feme  sole,  in  which  case  her  con- 
tracts bind  both  as  if  their  marriage  had  subsequently  taken  place.  She  may  join  with 
her  guardian  to  release  dower,  and  any  agreement  between  her  and  such  guardian  is  bind- 
ing. The  same  rules  apply  to  a  married  woman  who  comes  into  the  State  without  her 
husband.  The  property  acquired  by  a  married  woman,  before  or  after  coverture,  is  free 
from  her  husband's  liabilities ;  but  she  cannot  sell  it  without  his  consent,  or  authority  from 
court,  nor  if  separated  from  him  can  she  remove  it  from  his  premises  without  such  author- 
ity. R.  S.  c.  85.  She  may  recover  land  lost  by  his  default,  and  defend  when  he  neglects. 
Id.  c.  113,  §§  3,  4.  The  marriage  of  an  executrix  extinguishes  her  authority.  Id.  c.  69, 
§  8.  So  of  an  administratrix.  Id.  c.  70,  §  13.  A  feme  covert  may  have  a  general  and 
beneficial  power  to  dispose,  during  marriage,  of  landi  conveyed  to  her.  Id.  c.  64,  §  8. 


MAEEIED  •WOMEN.  29 

She  may  devise  her  property,  id.  c.  68,  §  1 ;  and  may  have  dower  through  an  alien.  Id. 
Q.  66,  §  21.  A  married  woman  may  insure  the  life  of  her  husband  for  her  benefit  and  that 
of  her  children,  but  the  annual  premium  must  not  exceed  $300.  Laws  of  1848,  No.  233, 
p.  350.  When  divorced  from  bed  and  board,  she  has  the  same  power  over  her  property 
as  a  feme  sole.  Compiled  Laws  p.  965,  §  24.  When  the  divorce  is  not  for  her  fault,  or  on 
the  imprisonment  of  her  husband  for  life,  she  is  entitled  to  her  real  estate,  and  a  reason- 
able amount  of  the  personal,  which  came  to  him  by  reason  of  the  marriage.  But  when  it 
is  divorced  for  her  adultery  he  holds  her  real  estate  as  long  as  they  both  live,  and  if  there 
be  children,  he  holds  it  as  tenant  by  curtesy ;  and  her  personal  estate  forever.  Id.  956, 
§§  18,  19,  25.  A  homestead  of  the  value  of  fifteen  hundred  dollars  is  exempted  from  exe- 
cution. Compiled  Law,  ch.  132  ;  Laws  of  1861,  No.  248.  She  may  sue  and  be  sued  as 
to  her  sole  property,  as  if  unmarried.  Laws  of  1857,  No.  132.  Id.  No.  196. 


MINNESOTA. 

In  MINNESOTA,  all  property  owned  by  any  married  woman,  real  or  personal,  at  her 
marriage,  or  received  afterwards,  is  her  own,  as  if  unmarried,  and  is  free  from  the  control 
of  her  husband,  and  is  not  liable  for  his  debts.  She  may  make  any  contract  she  could 
make  if  unmarried ;  and  any  transfer  of  her  property,  except  that  the  husband  must  join 
in  the  deed  of  her  realty,  unless  he  have  deserted  her.  Neither  husband  nor  wife  is  liable 
for  the  debts  of  the  other,  except  that  the  husband  is  liable  for  necessaries  furnished  to  the 
wife,  as  at  common  law.  Either  may  be  the  agent  of  the  other,  or  contract  with  the  other, 
except  as  to  the  sale  of  real  estate  from  one  to  the  other.  A  husband  deserting  his  wife 
or  divorced,  may  be  decreed  by  the  district  court,  on  an  action  by  the  wife,  to  be  debarred 
from  his  curtesy,  and  the  wife  may  be  permitted  to  act  with  reference  to  her  real  prop- 
erty as  if  sole.  Laws  of  1869,  ch.  56.  A  homestead  of  80  acres  not  included  in  any  incor- 
porated town,  city,  or  village,  or  one  lot  in  any  town,  city,  or  village,  is  exempt  from  sale 
by  execution.  Kev.  St.  1866,  ch.  68. 


MISSISSIPPI. 

In  MISSISSIPPI,  the  rents,  issues,  and  profits  of  her  real  estate,  enure  to  her  sole  and 
separate  use.  Revised  code  (1857),  p.  336.  Suits  affecting  her  separate  property  may 
be  prosecuted  and  defended  in  their  joint  names.  Id.  p.  336.  Covenants  in  consideration 
of  marriage  and  marriage-settlement,  must  be  acknowledged  and  recorded.  Id.  310.  She 
may  defend  in  a  suit  for  her  land  if  the  husband  neglects.  Id.  p.  316.  The  husband  is 
not  liable  for  the  wife's  antenuptial  debts,  nor  for  any  debt  contracted  after  marriage,  if 
she  hold  separate  property.  Id.  336.  Wife  may  convey  her  real  estate  by  joint  deed,  and 
is  bound  by  her  covenants  in  such  deed.  Revised  code,  p.  307,  art.  4.  Every  description 
of  property  of  a  married  woman  and  the  income  of  such  is  her  own  separate  property, 
and  is  not  liable  for  his  debts,  nor  can  it  be  encumbered  in  any  way  but  by  joint  deed.  Id, 


30  MARRIED  WOMEN. 

335,  art.  23.  He  is  entitled  to  curtesy  in  her  real  estate,  and  if  she  leave  no  children,  in- 
herits her  personal  property.  Id.  337,  art.  28.  She  may  dissent  from  his  will  if  her  sepa- 
rate property  be  not  equal  to  what  would  be  her  dower  and-  distributive  share  in  her 
husband's  estate.  Id.  338,  art.  31,  32.  Her  separate  receipt  is  good;  and  her  bond  exe- 
cuted jointly  with  her  husband  binds  her  separate  property.  Id.  337,  art.  30.  A  home- 
stead is  exempted  from  execution,  not  more  than  160  acres,  and  not  more  in  value  than 
$1,500.  Id.  529. 


MISSOURI. 

In  MISSOURI,  a  married  woman  may  not  be  executrix  or  administratrix.  General 
Statutes  (1865),  p.  480.  Marriage-contracts  must  be  recorded.  Id.  460.  The  rents  and 
issues  of  her  real  estate,  owned  at  marriage  or  afterwards  acquired,  are  not  liable  for  the 
debts  of  her  husband,  nor  is  his  interest  in  her  real  estate,  excepting  that  the  annual 
products  may  be  levied  upon  for  a  debt  of  the  husband  created  for  necessaries  for  the  wife 
and  family,  or  for  the  cultivation  or  improvement  of  her  real  estate.  Id.  p.  464.  She 
may  devise  her  real  estate,  but  not  so  as  to  affect  his  curtesy.  Id.  p.  464.  A  homestead 
is  exempt  from  execution,  not  more  than  160  acres,  and  not  exceeding  $1,500  in  value. 
Id.  448.  The  wife  may  insure  for  her  benefit  either  her  husband's  life  or  her  own ;  and 
no  life-insurance  effected,  whether  before  or  after  marriage,  by  the  husband  upon  his  own 
life,  shall  be  liable  for  his  debts,  unless  so  expressed  upon  the  face  of  the  policy.  But  a 
creditor  may  insure  his  debtor's  life.  Id.  p.  464.  If  husband  without  cause  .abandon  his 
wife,  or  lawful  children  under  twelve  years  of  age,  he  is  punished  by  fine  of  not  less  than 
$50  nor  more  than  $500,  or  by  imprisonment  for  not  less  than  one  month  nor  more  than 
twelve  months.  Laws  of  Missouri,  1867,  p.  112. 


NEBRASKA. 

In  NEBRASKA,  any  real  estate  belonging  to  a  married  woman  may  be  managed  or  dis- 
posed of  by  lease,  deed,  or  will,  as  if  she  were  single.  Rev.  St.  (1866),  p.  290.  She  is 
not  bound  by  any  covenant  in  a  joint  deed  of  herself  and  husband.  Id.  p.  291.  On  dis- 
solution of  the  marriage  for  any  cause  but  her  adultery,  the  court  may  order  the  whole 
or  any  part  of  the  personal  property  which  came  to  the  husband  by  the  marriage  to  be 
restored  to  her,  or  to  trustees  for  her.  Id.  p.  131.  A  homestead  not  exceeding  160 
acres  of  unincorporated  land,  or  not  exceeding  two  lots  in  any  town,  city,  or  village,  is 
exempted  from  sale  by  execution.  Laws  of  1867,  p.  91. 


NEVADA. 

In  NEVADA,  all  property  of  the  wife,  real  or  personal,  held  at  marriage,  or  afterwards 
acquired  by  gift,  bequest,  devise,  or  descent,  is  her  separate  property ;  and  all  the  husband's 


MAKKIED  WOMEN.  31 

so  held  or  acquired  is  his  separate  property.  All  property  acquired  otherwise  by  either 
party,  after  marriage,  is  common  property.  An  inventory  of  her  property  must  be  made 
and  recorded.  During  marriage,  the  husband  has  the  management  and  control  of  her 
separate  property ;  but  no  alienation  shall  be  valid  unless  by  instrument  executed  by  both. 
The  separate  personal  property  of  the  wife,  except  money  in  specie,  shall  not  be  sold  or 
transferred,  unless  husband  and  wife  join  therein.  The  district  court  may  assign  a  trustee 
to  take  care  of  the  wife's  separate  property,  if  the  husband  mismanages  the  same.  The 
husband  has  the  same  control  and  disposition  of  the  common  property  as  of  his  separate 
estate.  Dower  and  curtesy  are  abolished.  The  separate  property  of  the  wife  is  liable  for 
the  antenuptial  debts  of  the  wife,  but  his  is  not.  Marriage-contracts,  duly  executed  and 
recorded,  may  vary  these  rights  and  interests.  Laws  of  1865,  ch.  76.  Married  women 
may  carry  on  and  transact  business  under  their  own  name,  under  certain  regulations. 
Laws  of  1867,  ch.  10.  A  homestead,  not  exceeding  in  value  $5,000  is  exempt  from  sale 
on  execution.  Laws  of  1865,  ch.  72. 


HAMPSHIRE. 

In  NEW  HAMPSHIRE,  a  married  woman  holds  free  from  interference  of  her  husband  all 
property  owned  before,  or  acquired  after,  marriage,  if  not  occasioned  by  payment  or  pledga 
of  his  property.  Gen.  St.  (1867),  p.  337.  She  has  the  same  rights  and  remedies  as  to  the 
same  as  if  unmarried.  P.  338.  After  three  months  of  desertion,  or  of  any  other  thing 
which  if  longer  continued  will  be  a  cause  of  divorce,  the  wife  may  hold  in  her  several 
right,  and  dispose  of  property  acquired  by  her  in  any  way,  and  the  earnings  of  the  minor 
children,  until  the  desertion  ceases.  And  the  judge  of  probate  in  the  county  where  she 
resides  may  order  provision  for  her  and  her  children  from  any  property  of  the  husband  in 
the  State.  She  shall  then  have  the  same  rights  ;  and  her  property  shall  descend,  as  if 
single.  Id.  337.  The  will  of  the  married  woman  passes  property  held  in  her  right  to 
any  devisee  except  the  husband ;  but  shall  not  affect  his  rights  in  the  estate,  or  to  a  distrib- 
utive share  thereof.  Id.  338.  The  homestead,  to  the  value  of  $500,  is  exempt  from 
attachment  and  execution,  and  is  in  no  way  liable  for  the  husband's  debts,  nor  subject  to 
distribution  or  devise,  while  a  widow  or  a  minor  child  lives  thereon.  But  this  right  may 
be  waived  by  deed  of  husband  and  wife,  and  is  not  valid  against  a  claim  or  note  or  mort- 
gage of  husband  and  wife,  or  for  labor  less  than  $100,  or  a  lien  by  the  seller  of  the 
estate  for  its  price,  or  a  debt  contracted  for  the  erection  of  the  buildings,  or  for  taxes. 
Laws  of  1868,  p.  130. 


NEW    JERSEY. 

In  NEW  JERSEY,  her  property,  real  or  personal,  acquired  before  or  after  marriage,  is 
free  from  the  husband's  control  or  debts.  Public  Acts  of  1852,  p.  407.  Antenuptial  con- 
tracts are  valid.  Id.  Any  insurance  of  life  for  her  benefit  is  secured  to  her  or  her 
children,  if  the  premium  does  not  exceed  $100.  Public  Acts  of  1851,  p.  34.  If  her 
husband  dies,  she  may  recover  from  his  estate  the  personal  property  belonging  to  her 


32  MARRIED  WOOLEN. 

before  marriage.  Public  Acts  of  1851,  p.  201.  If  she  dies,  her  husband  may  administer 
and  retain  her  personal  property.  R.  S.  Tit.  10,  c.  7,  §  15  ;  Adm'rs  of  Donnington  v. 
Adm'rs  of  Mitchell,  1  Green,  Ch.  243.  If  he  abandon  or  desert  her,  she  may  have,  by 
order  of  court,  maintenance  from  his  property ;  but  during  this  maintenance  he  is  not 
liable  for  her  debts.  R.  S.  Tit.  33,  c.  3,  §  10.  She  cannot  dispose  of  real  estate  by  will. 
R.  S.  Tit.  10,  c.  10,  §  3.  If  the  husband  dies  leaving  a  family,  his  household  goods  to  the 
value  of  $200,  and  real  estate  occupied  by  him  at  his  death,  to  the  amount  of  81,000,  are 
secured  to  his  widow  and  children  ;  and  no  waiver  of  this  exemption  is  valid.  Public  Acts 
of  1851,  p.  278,  §  4 ;  Public  Acts  of  1852,  p.  222,  §  1.  Nor  can  such  homestead  be  sold 
or  encumbered,  unless  other  $1,000  are  invested  in  other  buildings  for  a  homestead  ;  and 
until  this  investment,  the  title  of  the  purchaser  is  not  good.  Id.  §  7.  In  a  joint  deed  by 
husband  and  wife  (if  she  be  of  full  age),  her  covenants  of  warranty  will  bind  her  in  the 
same  manner  as  if  she  were  unmarried.  If  her  husband  be  a  lunatic,  or  confined  in  the 
State  prison  for  crime,  she  may  dispose  of  her  interest  in  any  property,  so  as  not  to 
interfere  with  his  rights  in  the  same  property.  Laws  of  N.  J.  1857,  c.  189,  277.  If  living 
apart  from  her  husband,  she  may,  by  joining  his  name  with  hers  (though  without  his  con- 
sent), bring  her  suit  in  any  court  of  record  ;  and  he  cannot  control,  release,  or  discontinue 
such  action.  In  such  case  she  may  also,  by  decree  of  court,  convey  any  interest  in  real  or 
personal  property,  except  a  gift  from  her  husband,  without  his  concurrence,  but  cannot 
affect  any  right  which  he  may  then  have  in  such  property.  Id.  c.  337,  344. 


NEW    YORK. 

In  NETV  YORK,  all  a  married  woman's  real  and  personal  estate,  whether  acquired 
before  or  after  marriage,  if  not  from  her  husband,  may  be  held  by  her  for  her  own  use,  as 
if  she  were  unmarried,  and  is  not  liable  for  his  debts  nor  subject  to  his  control.  R.  S. 
Part  II.  c.  8,  Tit.  1,  art.  6,  §§  65-67,  68.  Power  of  disposal  may  be  given  her  in  any 
conveyance  or  devise  to  her,  and  she  may  execute  them  without  the  husband's  concurrence, 
P.  II.  c.  1,  Tit.  2,  art.  3,  §§  93,  100,  103,  unless  their  terms  require  that.  Id.  §  123.  But 
she  must  acknowledge  it  privately,  as  she  must  also  in  cases  of  conveyance.  Id.  §  130. 
The  husband  may  administer  on  her  estate,  and  is  liable  for  her  debts  to  the  extent  of 
assets  received  from  her  property,  and  is  liable  for  the  whole  if  he  does  not  take  out 
letters.  P.  II.  c.  6,  Tit.  2,  art.  2,  §  29.  Antenuptial  contracts  are  valid.  P.  II.  c.  8,  Tit. 
1,  art.  6,  §  69.  Insurances  of  life  for  her  benefit  are  secured  to  her  if  the  premium  does 
not  exceed  $300.  Id.  §  70.  Her  receipt  is  valid  for  her  deposits  in  any  bank.  Id.  §  73. 
She  may  vote  by  proxy  in  corporations,  of  which  she  is  a  member,  except  mutual  fire- 
insurance  companies.  Id.  §  74.  She  may  have  the  custody  of  minor  children  by  order 
of  court.  Id.  Tit.  2.  In  an  action  between  herself  and  her  husband,  she  may  sue  and  be 
sued  alone.  Id.  P.  II.  c.  4,  Tit.  3,  §  114.  Only  her  separate  estate  is  liable  for  her  debts 
before  marriage.  Public  Acts  of  1853,  c.  576,  §§  1,  2.  Insurance  effected  by  married 
woman  on  her  husband's  life,  in  case  of  her  death  before  him,  goes  to  his  or  her  children, 
for  their  use  as  shall  be  provided  by  the  policy,  and  to  their  guardians  if  under  age. 
Laws  of  N.  Y.  1862,  p.  214.  She  may  convey  her  real  or  personal  estate,  and  her 
covenants  of  warranty  bind  her  separate  property.  She  may  sue  and  be  sued,  and  may  bring 


MAEEIED  WOMEN.  33 

actions  in  her  own  name  for  injuries  to  her  person  and  character ;  money  received  as 
compensation  in  such  cases  is  her  separate  property.  No  bargain  made  by  her  respecting 
her  sole  property,  or  in  the  carrying  on  of  any  trade,  will  render  her  husband  or  his  prop- 
erty liable.  Nor  is  he  liable  for  costs  of  action  brought  in  her  name.  He  cannot 
apprentice  her  child  or  part  transfer  control  of  him,  without  her  consent  in  writing. 
Judgments  may  in  all  cases  be  enforced  against  her  separate  property  as  if  she  were  sole. 
Id.  1862,  c.  172.  She  may  act  as  an  executrix  or  administratrix  or  guardian  of  minor, 
and  her  bonds  given  in  these  respects  bind  her  as  an  unmarried  woman.  Id.  vol.  2,  1867, 
p.  1927.  In  any  action  except  a  criminal  one,  the  husband  or  wife  of  any  party  thereto, 
or  of  any  person  in  whose  behalf  it  is  brought,  are  competent  witnesses ;  and  are  so  to 
prove  the  fact  of  marriage  in  cases  of  bigamy.  Id.  21,  22.  A  homestead  of  the  value  of 
$1,000  is  exempt  from  execution.  Laws,  1850,  ch.  260.  Rev.  St.  Tit.  1,  p.  3,  c.  6,  §  28. 


NORTH 


In  NORTH  CAROLINA,  a  marriage  settlement  or  contract  is  invalid  against  creditors,  if 
a  greater  value  is  secured  to  the  intended  wife  and  children  of  the  marriage  than  is 
received  with  her  in  marriage,  and  the  estate  of  the  husband  free  from  debt  at  the  time 
of  the  marriage.  In  case  of  suit,  the  burden  of  proof  is  on  the  person  claiming  under 
such  contract.  A  legacy  to  the  wife  in  general  words  and  not  in  trust,  or  a  distributive 
share  of  an  intestate  estate  falling  to  her  during  coverture  (if  the  estate  of  the  husband 
and  wife  is  not  at  the  time  of  the  marriage  thus  sufficient)  is  taken  as  a  part  of  the  portion 
received  with  the  wife.  Revised  Code,  ch.  37.  Real  estate  belonging  to  the  wife  at  the 
time  of  the  marriage  cannot  be  sold  or  leased  by  the  husband,  except  with  her  consent, 
ascertained  by  private  examination,  and  no  interest  of  the  husband  therein  is  subject  to 
execution  against  him.  Id.  ch.  56,  §  1.  The  proceeds  of  the  wife's  land  sold  by  court  are 
secured  to  her  or  her  representatives.  Id.  ch.  82,  §  7.  Provision  also  exists,  by  which  a 
married  woman  may  insure  the  life  of  her  husband  for  her  sole  benefit,  ch.  56,  §  2.  Power 
may  be  given  her  by  will,  deed,  &c.,  to  dispose  by  will  of  property  thereby  conveyed,  ch. 
119,  §  3.  If  she  marry  under  the  age  of  fifteen,  unless  her  father  assents  to  the  marriage 
in  writing,  her  estate  is  secured  to  her  separate  use,  ch.  68,  §  10.  Homestead  exempt  from 
execution  to  the  value  of  $1,000.  Public  Laws,  1868-1869,  p.  333. 


OHIO. 

In  OHIO,  the  interest  of  the  husband  in  the  wife's  real  estate,  and  her  personal  and  real 
property,  held  at  her  marriage,  or  subsequently  acquired,  is  her  own  separate  property, 
not  liable  to  the  control,  or  for  the  debts  of,  her  husband.  Swan  and  Sayles's  Supplement 
to  Rev.  St.  (1868),  pp.  389,  390.  But  she  cannot  affect  the  husband's  curtesy.  Id.  The 
husband  of  an  insane  wife  may  be  authorized  to  sell  his  real  estate  without  her  joining, 


34  MAEEIED  WOMEN. 

free  from  her  dower.  Swan's  Rev.  St.  1860,  p.  852.  The  husband  must  be  joined  with 
the  wife  in  all  actions  to  which  she  is  a  party,  except  those  concerning  her  separate  prop- 
erty, when  she  may  sue  by  her  next  friend ;  as  she  may  in  actions  between  themselves, 
except  for  divorce  or  alimony,  when  she  sues  alone.  Id.  p.  953.  Husband  and  wife  may 
not  testify  for  or  against  each  other  while  the  relation  subsists  or  afterwards.  Id.  p.  1038. 
As  to  the  rights  of  the  wife  to  children  and  property  when  her  husband  joins  the  Shakers, 
id.  1395.  The  husband  or  wife  may  insure  his  life  (the  annual  premium  not  to  exceed 
$150,  otherwise  the  surplus  insurance  to  go  to  his  representatives)  for  the  benefit  of  her 
and  her  children.  Id.  p.  737.  A  married  woman  may  dispose  of  her  property  by  will.  Id. 
p.  1615  ;  and  the  will  of  a  feme  sole  is  not  revoked  by  her  subsequent  marriage.  Id.  p. 
1622.  The  homestead  to  the  value  of  $500,  is  exempt  from  execution,  &c.  Id.  p.  1145. 
A  married  woman  whose  property  is  appropriated  for  public  use  is  empowered  to  do  any 
thing  necessary  for  an  owner  to  do,  as  if  she  were  unmarried.  Id.  1859,  p.  147.  She  has 
full  power  to  contract  for  repairs  and  for  cultivating  her  own  property  in  her  own  name, 
during  coverture,  but  cannot  lease  for  a  longer  period  than  three  years,  and  during  her 
life  and  the  life  of  any  of  her  heirs,  such  property  cannot  be  taken  by  his  creditors  ;  but 
his  estate  by  curtesy  remains  :  and  in  all  actions  in  regard  to  her  separate  estate  it  only  is 
liable  for  any  judgment  rendered.  Id.  1866,  pp.  47,  48. 


OREGON. 


In  OREGON,  the  property  of  a  married  woman  is  deemed  her  separate  property,  and 
not  liable  for  the  debts  of  her  husband,  from  and  after  her  declaration  of  her  intention  to 
hold  it  as  separate,  duly  executed  and  acknowledged,  shall  be  recorded  by  the  county 
clerk,  unless  the  same  be  afterwards  revoked  by  her.  Compiled  Statutes,  1864,  p.  786. 
Laws  of  1866,  p.  6.  Husband  and  wife  may  convey  her  real  estate  by  their  joint  deed  ; 
but  she  is  not  bound  by  any  covenant  therein.  Comp.  L.  p.  646. 


In  PENNSYLVANIA,  the  wives  of  mariners  and  others  at  sea  may  trade  as,  and  have 
generally,  the  rights  of  femes  sole.  Purdon's  Digest  of  Laws  of  Penn.  (9th  ed.  by 
Brightly,  1862),  p.  474.  The  husband  administers  upon  his  deceased  wife's  estate,  and  she 
generally  upon  his.  Id.  p.  277.  She  retains  all  property  owned  before,  or  obtained  after, 
marriage,  free  from  the  control  or  debts  of  her  husband.  Id.  p.  609.  He  is  not  liable  for  her 
antenuptial  debts.  Her  property  is  liable  for  her  debts  and  torts,  and  execution  must  first 
be  had  against  it.  Id.  p.  700.  And  she  may  dispose  of  it  by  will.  Id.  p.  700.  Lancaster 
Co.  Bank  v.  Stauffer,  10  Penn.  St.  398  ;  Lefever  v.  Witmer,  id.  505  ;  Cummings'  Appeal, 
11  id.  272;  Goodyear  v.  Rumbaugh,  13  id.  480,  s.  c.  Law  Journ.  July  29,  1850.  But 


MAEKIED  WOMEN.  35 

(except  in  case  of  property  held  in  trust  for  her  separate  use  by  virtue  of  the  terms  of  a 
deed  or  will)  her  power  to  bequeath  is  restricted  so  that  her  surviving  husband  may  elect 
to  take  such  interest  in  her  property  as  she,  surviving,  could  elect  to  take  in  his  ;  or  else 
his  estate  by  the  curtesy.  Id.  p.  701.  She  may  sue  alone  for  her  money,  or  perhaps  with 
her  husband,  Goodyear  v.  Rumbaugh,  supra,  and  with  her  husband  for  her  estate,  a  re- 
covery to  be  for  her  benefit,  or  maintain  trespass  for  injury  to  her  property,  though  he  dis- 
sents, and  he  cannot  sue  therefor  alone.  Goodyear  v.  Rumbaugh,  supra.  Marriage  does 
not,  even  with  her  consent,  dissolve  her  testamentary  guardianship.  Cummings'  Appeal, 
supra.  His  property  is  first  liable  for  necessaries;  for  want  of  it,  the  wife's.  Id.  700.  He  re- 
tains his  estate  by  the  curtesy,  id. ;  but  as  to  when  it  is  generally  liable  to  his  creditors,  see 
id.  p.  1093  ;  Lancaster  Co.  Bank  v.  Stauffer,  supra ;  Lefever  v.  Witmer,  supra.  A  trustee 
may  be  appointed  of  a  married  woman's  property,  and  she  may  declare  trusts.  Dunlop,  p. 
1096.  There  are  also  provisions  by  which  claims  for  personal  injury  to  the  husband  sur- 
vive to  the  widow,  id.  p.  1145 ;  by  which  married  women  may  loan  to  their  husbands,  id., 
and  for  insanity  of  the  wife.  Id.  p.  1170.  If  the  husband  does  not  provide  for  his  wife, 
or  deserts  her,  she  has  the  rights  of  a  feme  sole  ;  and  if  intestate  her  property  descends  as 
if  he  had  previously  died.  Id.  702.  In  such  case,  or  if  divorced  a  mensa  et  thoro,  she  may 
maintain  an  action  for  slander  or  libel,  and  may  recover  her  separate  earnings  and  prop- 
erty ;  but  if  her  husband  is  defendant,  in  the  name  of  her  next  friend.  Id.  702.  If  of 
lawful  age,  and  entitled  to  a  legacy,  &c.,  she  may  execute  a  refunding  bond  and  other 
instruments  to  an  executor  or  administrator.  Id.  702.  No  judgment  obtained  against  her 
husband  before  or  during  marriage  shall  bind  or  be  a  lien  on  her  real  estate,  or  his 
interest  as  tenant  by  curtesy.  And  by  joining  with  him  she  may  convey  any  lands  con- 
veyed to  or  acquired  by  her  to  her  separate  use,  which  conveyance  will  be  as  valid 
as  if  in  execution  of  a  power  contained  in  the  deed  creating  such  estate.  Laws  of 
Penn.  1863,  pp.  212,  215.  But  if  such  right  has  been  withheld  in  the  deed,  will,  or 
other  instrument  which  created  the  separate  estate,  she  cannot  convey.  Id.  1867,  p.  67 


RHODE 


In  RHODE  ISLAND,  there  is  a  provision  substantially  like  that  in  Massachusetts  as  to  a 
icarried  woman  coming  into  the  State  without  her  husband,  and  there  living  without  him. 
Itev.  St.  (1857),  p.  314.  Rents  and  profits  of  her  real  estate  secured  to  her.  Her  chattels 
real,  furniture,  plate,  jewels,  shares  in  an  incorporated  company,  money  deposited  in 
savings  bank,  or  debts  due  to  her  and  secured  by  mortgage,  may  be  transferred  by 
joint  deed  of  husband  and  wife.  All  other  personal  estate  she  may  dispose  of  as  if  un- 
married. Id.  p.  316.  Any  married  woman  may  dispose  of  her  real  estate  by  will,  but  not 
to  deprive  her  husband  of  his  tenancy  by  the  curtesy.  Id.  317.  Acts  and  Res.,  January 
Session,  1856,  p.  68.  Her  deposits  in  an  institution  for  savings  are  her  own  property,  id. 
p.  73.  Any  policy  of  insurance  for  her  benefit,  not  exceeding  the  sum  of  $10,000,  is  hers 
independently  of  her  husband,  or  the  person  effecting  the  insurance,  or  the  creditors  of 
either.  Public  Laws,  1860,  p.  96. 


36  MARRIED  WOMEN. 


SOUTH    CAROLINA. 

In  SOUTH  CAROLINA,  the  real  and  personal  property  of  a  married  woman,  whether 
held  by  her  at  the  time  of  the  marriage,  or  accrued  to  her  thereafter  in  any  way,  shall  be 
her  separate  property,  and  not  subject  to  levy  or  sale  for  her  husband's  debts.  Statutes 
of  1870,  No.  220.  She  may  bequeath,  devise,  or  convey  her  separate  property,  as  if  un- 
married; and,  if  she  dies  intestate,  her  property  shall  descend  in  the  same  manner  as  is 
provided  for  the  property  of  husband.  She  may  purchase  any  property,  and  contract  in 
reference  to  it,  as  if  unmarried.  Id.  id.  Her  husband  is  not  liable  for  her  debts  con- 
tracted before  marriage,  nor  for  those  contracted  after,  except  for  her  necessary  support. 
Id.  id.  A  homestead  of  the  value  of  $1,000  is  exempt  from  execution.  Stat.  of  1868, 
No.  16,  and  also  $500  worth  of  personal  property.  Stat.  of  1870,  No.  273.  When  the 
action  concerns  her  separate  property,  she  may  sue  and  be  sued  alone.  Stat.  of  1870, 
Tit.  3.  p.  451 ;  and  judgment  may  be  entered  against  her  separately,  and  execution  be 
levied  on  her  separate  property.  Id.  p.  491. 


TE1VIVESSEE. 


In  TENNESSEE,  the  wife  may  manage  her  own  and  her  husband's  property,  when  he  is 
incapacitated,  Code  of  Tcnn.  (1858),  p.  488;  and  her  property  is  not  liable  in  such  case 
for  his  debts.  Id.  id.  Property  acquired  by  her,  subsequent  to  an  abandonment  by  him, 
or  separation  from  him,  in  consequence  of  ill  usage,  is  not  liable  for  his  debts.  If 
she  live  with  him  again,  it  is.  P.  488.  Marriage  contracts  are  not  good  where  more 
property  is  concerned  than  the  portion  actually  received  with  the  wife  at  the  time  of  mar- 
riage ;  but  subsequent  legacies  to  her  are  considered  as  property  received  by  her.  P. 
369.  A  feme  covert  may  dispose  by  will  of  her  own  estate.  Id.  p.  488.  A  homestead 
of  the  value  of  $500  is  exempted  from  execution,  and  shall  not  be  aliened,  if  the  owner  be 
married,  except  by  the  joint  deed  of  him  and  his  wife.  Id.  p.  431. 


TEXAS. 

In  TEXAS,  the  marriage  of  a  female  minor  gives  her  all  the  right  she  would  have  if  of 
age.  Paschal's  Digest  of  Texas  Laws  (1860),  art.  4632.  All  property  acquired  by  either 
party  before  marriage,  or  by  gift,  devise,  or  descent  afterwards,  is  the  separate  property  of 
each;  but  the  husband  has  the  management  of  the  whole.  Id.  art.  4641.  Property 
acquired  by  either  during  marriage,  in  other  ways,  is  common ;  the  husband  may  dispose 
of  it  during  coverture ;  if  there  are  no  children,  the  whole  goes  to  the  survivor,  otherwise 
one-half.  Id.  art.  4642.  The  parties  may  be  jointly  sued  for  necessaries  and  for  ex- 


MARRIED  WOMEN.  37 

penses  benefiting  the  wife's  separate  estate.  Id.  art.  4643.  Execution  may  be  levied  on 
common  property,  or  her  separate  property,  at  the  plaintiffs  option.  Id.  art.  4644.  Mar- 
riage-agreements must  be  made  before  a  notary,  and  may  be  acknowledged  by  a  minor 
•with  the  parent's  or  guardian's  consent,  id.  art.  4633,  and  are  unalterable  after  marriage. 
Id.  art.  4634.  A  reservation  of  property  therein  to  be  good  must  be  recorded.  Id.  art. 
4635.  Husband  and  wife  may  sue  jointly  and  separately,  for  her  effects.  Id.  4636. 
The  homestead,  not  exceeding  fifty  acres  of  land,  and  not  exceeding  five  hundred  dollars 
of  improvements  (or,  if  in  a  town  or  city,  two  thousand  dollars  in  value),  is  exempt  from 
execution.  Const,  of  Texas,  art.  7,  §  22.  The  wife  acts  jointly  with  her  husband,  when 
she  is  appointed  executrix  or  administratrix.  Id.  art.  1234.  The  survivor  takes  the 
common  property  subject  to  its  debts,  nor  is  it  necessary  for  her  husband  to  administer 
on  such  property  on  her  death ;  as  he  has  the  same  control  of  it  then  that  he  had  in  her 
lifetime.  In  case  of  his  death,  she  has  the  same  control,  till  she  marries ;  when  it  will  be 
subject  to  administration.  Id.  art.  4647,  4652.  Husband  may  fill  antecedent  contracts, 
and  be  compelled  to  give  bonds  for  the  proper  management  of  the  common  property.  Id. 
art.  4650.  Her  separate  property  is  not  chargeable  with  necessaries  procured  for  him. 
Id.  art.  4641,  §  4.  The  common  property  is  liable  for  all  debts  contracted  during  mar- 
riage. Id.  art.  4646.  Either  may  by  will  give  to  the  survivor  the  power  to  keep  his  and 
her  separate  property  together,  until  each  of  the  several  heirs  come  of  age ;  and  to  manage 
and  control  it,  subject  to  law  and  the  provisions  of  the  will.  Id.  art.  4653. 


VERMO1VX. 


In  VERMONT,  in  case  of  desertion,  the  Supreme  Court  may  authorize  a  wife  of  eighteen 
years  of  age,  to  convey  her  real  estate,  and  the  personal  estate  which  came  to  her  hus- 
band through  her,  if  in  the  State  and  undisposed  of  by  him ;  and  require  any  one  owing 
her  husband  money  in  her  right  to  pay  it  to  her ;  and  the  proceeds,  and  her  own  earn- 
ings, and  those  of  her  minor  children  shall  be  held  by  her  for  her  own  use.  Laws  of 
1869,  No.  13  ;  and  Gen.  Stat.  (1863),  p.  469.  If  the  real  estate  of  a  wife  be  taken  for  pub- 
lic use,  the  damages  are  to  be  secured  to  her  benefit.  Id.  p.  470.  The  wife  of  a  man  under 
guardianship  may  join  with  the  guardian  in  making  partition,  &c.  Id.  p.  470.  The  wife 
of  a  man  confined  in  the  State  prison  is  as  a  feme  sole  as  to  suits  for  causes  arising  after 
his  sentence.  Id.  471.  Married  women  may  devise  by  will  their  inheritable  real  estate. 
Id.  471.  The  rents,  &c.,  of  all  her  real  estate,  and  her  husband's  interest  in  it,  shall  be 
exempt  from  attachment  or  execution  for  his  sole  debts,  nor  can  he  convey  them  without 
her.  Id.  471.  She  may  insure  the  life  of  her  husband  for  her  own  use,  if  the  premium 
do  not  exceed  $300.  Id.  472.  The  homestead,  not  exceeding  $500  in  value,  exempt  from 
sale  on  execution.  Id.  p.  456 ;  Acts  of  1851,  No.  29.  The  earnings  of  a  married  woman 
and  her  deposits  in  Savings  bank  are  not  subject  to  trustee  process  by  her  husband.  Gen. 
Stats,  pp.  305  and  549.  The  annual  product  of  her  real  estate  is  subject  to  the  payment 
of  necessaries  for  herself  and  family,  and  for  work  and  materials  for  their  benefit.  Stocks 
and  bonds  given  to  her  by  a  parent  are  governed  by  the  same  law.  Id.  47,  §  18.  When 
abandoned  by  her  husband,  she  may  maintain  an  action  in  her  own  name,  as  if  unmarried. 
Laws  of  Vermont,  1866,  p.  43.  All  personal  property,  and  rights  of  personal  acquired 


38  MARRIED  WOMEN. 

during  coverture,  or  by  inheritance,  or  distribution,  shall  be  held  to  her  sole  and  separate 
use.    Id.  1867,  p.  29. 


In  VIRGINIA,  the  husband  of  an  insane  wife  may  make  a  deed  to  bar  her  right  of 
dower,  on  leave  of  court;  but  the  same  interest  in  the  proceeds  shall  be  secured  to  her. 
Code  of  Virginia,  Tit.  36,  c.  128,  §  11.  If  the  husband  die  intestate,  and  without  issue 
by  her,  she  has  the  personal  property  which  he  had  from  or  with  her,  and  which  he  has 
not  disposed  of,  if  his  other  personal  estate  suffices  to  pay  his  debts.  Id.  Tit.  33,  c.  123, 
§  10.  She  can  make  no  wjll  except  of  her  separate  estate,  or  by  a  power  of  appointment. 
Id.  Tit.  33,  c.  122,  §  3.  A  homestead  not  exceeding  160  acres  of  land,  including  the 
buildings  thereon,  and  not  exceeding  $1,200  in  value.  Acts  of  Assembly,  1867,  ch.  139. 

In  WEST  VIKGINIA,  the  Code  of  Virginia  remains  in  force  in  these  respects. 


WISCONSIN. 

In  WISCONSIN,  the  marriage  of  a  feme  sole  executrix  or  administratrix  extinguishes 
her  authority.  Rev.  St.  c.  67,  §  8 ;  c.  68,  §  13,  and  of  a  female  ward  terminates  the  guar- 
dianship. Id.  c.  80,  §  27.  The  husband  holds  his  deceased  wife's  lands  for  life,  unless  she 
left  by  a  former  husband  issue  to  whom  the  estate  might  descend.  Id.  c.  62,  §  30.  Pro- 
visions exist  by  which  powers  may  be  given  to  married  women,  and  regulating  their  exe- 
cution of  them.  Id.  c.  58,  §§  8,  15,  40,  44,  57.  If  husband  and  wife  are  impleaded,  and 
the  husband  neglect  to  defend  the  rights  of  the  wife,  she,  applying  before  judgment,  may 
defend  without  him ;  and  if  he  lose  her  land  by  default,  she  may  bring  an  action  of  eject- 
ment after  his  death.  Id.  c.  3,  §§  3,  4.  The  real  estate  of  females  married  before,  and 
the  real  and  personal  property  of  those  after,  Feb.  21,  1850,  remain  their  separate  prop- 
erty. And  any  married  woman  may  receive,  but  not  from  her  husband,  and  hold  any 
property  as  if  unmarried.  Laws  of  1850,  c.  44.  She  may  insure  the  life  of  her  husband, 
son,  or  any  other  person,  for  her  own  exclusive  benefit,  but  the  annual  premium  must  not 
exceed  $300.  Laws  of  1862,  c.  182.  A  homestead  of  forty  acres,  used  for  agricultural 
purposes,  or  one-fourth  of  an  acre  within  a  recorded  town  plot,  or  city,  or  village,  is  ex- 
empt from  sale  on  execution.  Eev.  St.  c.  134,  §  23.  Laws  of  1863,  ch.  88.  Laws  of 
1864,  ch.  270. 

It  should  be  added,  that  the  wife  may  everywhere  even  by  com- 
mon law  be  the  agent  of  the  husband,  and  transact  for  him  his 
business  transactions,  making,  accepting,  or  indorsing  bills  or  notes, 
purchasing  goods,  rendering  bills,  collecting  money  and  receipting 
for  it,  and  in  general  entering  into  any  contract  so  as  to  bind  him, 
if  she  has  his  authority  to  do  so.  And  while  they  continue  to  live 


MARRIED  WOMEN.  39 

together,  the  law  considers  the  wife  as  clothed  with  authority  by 
the  husband  to  buy  for  him  and  his  family  all  things  necessary  in 
kind  and  quantity  for  the  proper  support  of  his  family ;  and  for 
such  pui chases  made  by  her,  he  is  liable. 

The  husband  is  responsible  for  necessaries  supplied  to  his  wife,  if 
he  does  not  supply  them  himself.  And  he  continues  so  liable  if  he 
turns  her  out  of  his  house,  or  otherwise  separates  himself  from  her, 
without  good  cause.  But  he  is  not  so  liable  if  she  deserts  him 
(unless  on  extreme  provocation),  or  if  he  turns  her  away  for  good 
•  jause. 

If  she  leaves  him  because  he  treats  her  so  ill  that  she  has  good 
right  to  go  from  him  and  his  house,  this  is  the  same  thing  as  turn- 
ing her  away ;  and  she  carries  with  her  his  credit  for  all  necessaries 
supplied  to  her.  But  what  the  misconduct  must  be  to  give  this 
right,  is  uncertain.  Some  English  cases  are  very  severe  on  this 
point.  In  one,  a  husband  brought  a  prostitute  into  his  house,  and 
confined  his  wife  to  her  own  room  under  pretence  of  her  insanity. 
But  the  court  held  this  to  be  insufficient.  The  Supreme  Court  of 
New  York,  in  commenting  upon  this  case,  said  that  "  the  doctrine 
contained  in  it  cannot  be  law  in  a  Christian  country."  In  America 
the  law  must  be,  and  undoubtedly  is,  that  the  wife  is  not  obliged  to 
stay  and  endure  cruelty  or  indecency. 

It  may  be  added,  that  if  a  man  lives  with  a  woman  as  his  wife, 
and  represents  her  to  be  so,  he  is  liable  for  necessaries  supplied  to 
her,  and  for  her  contracts,  in  the  same  way  as  if  she  were  his  wife ; 
and  this  even  to  one  who  knows  that  she  is  not  his  wife. 

The  statutes  of  which  we  have  given  an  abstract  are  intended  to 
secure  to  a  married  woman  all  her  rights.  But  in  all  parts  of  this 
country,  women  about  to  marry  —  or  their  friends  for  them  —  often 
wish  to  secure  to  them  certain  powers  and  rights,  and  to  limit  these 
in  certain  ways,  or  to  make  sure  that  their  property  is  in  safe  anu 
skilful  hands.  This  can  only  be  done  by  conveying  and  transfer- 
ring the  property  to  TRUSTEES  ;  that  is,  to  certain  persons  to  hold 
the  same  in  trust.  This  is  done  by  a  legal  instrument,  which  is 
almost  always  an  Indenture;  by  which  is  meant  an  instrument 
under  seal  between  two  or  more  parties.  This  instrument  must  sec 


40  MARKIED  WOMEN. 

forth  precisely,  and  with  legal  accuracy,  just  what  the  trust  is ; 
that  is  to  say,  just  what  the  trustees,  or  the  woman,  or  her  husband 
may  do,  and  just  what  they  must  do.  This  is  one  of  those  instru- 
ments which  require  peculiar  care  and  exactness.  We  give  as 
models,  or  forms,  two,  differing  in  their  terms  and  purposes.  Both 
were  drawn  by  very  skilful  lawyers,  and  with  such  changes,  of 
omission  or  addition  or  alteration,  as  the  circumstances  of  any  case 
or  the  wishes  of  the  parties  make  necessary,  will  be  useful  and  safe 
guides  in  the  preparation  of  such  instruments. 

(4.) 

An  Indenture  to  put  in  Trust  the  Property  of  an  Unmarried 

Woman. 

This  Indenture  of  two  parts,  made  and  concluded  this  day  of 

,  A.D.  eighteen  hundred  and  ,  by  and  between 

of  ,  singlewoman,  of  the  first  part,  and  ,  and 

,  of  ,  of  the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part  is  seized  and  possessed 
of  certain  real  and  personal  estate,  to  wit,  one  undivided  moiety  of  the  reversion 
in  and  of  a  messuage  and  land  in  ,  bounded  as  follows : 

a  mortgage  of  a  lot  of  land  bounded  on  Street,  and  described  in  the  deed 

of  to  ,  which  is  recorded  in  the  Registry  of 

Deeds,  lib.  ,  fol.  ;  a  mortgage  of  a  lot  of  land  bounded  on 

Street,  and  described  in  the  deed  of  ,  recorded  in 

the  said  Registry,  lib.  ,  fol.  ;  a  mortgage  of  two  lots  of  land  bounded 

on  Street,  and  described  in  the  deed  of  to  ,  re- 

corded in  the  said  Registry,  lib.  ,  fol.  ;  a  mortgage  of  a  lot  of  land 

bounded  on  Street,  and  described  in  the  deed  of  to 

recorded  in  the  Registry  aforesaid,  lib.  ,  foL  ;  one  hundred  shares  in 

the  capital  stock  of  the  Bank  in  ;  twenty-five  shares  in  the 

capital  stock  of  the  Bank  in  ;  and  fifty  shares  in  the  capital 

stock  of  the  Bank  of  ;  also  a  note  of  hand  signed  by  the   said 

,  for  the  sum  of  fifteen  thousand  dollars  ;  a  note  of  hand  signed  by  the 
said  ,  for  the  sum  of  three  thousand  dollars ;  a  note  of  hand  signed  by 

and  ,  for  the  sum  of  two  thousand  five  hundred  dol- 

lars ;  a  note  of  hand  signed  by  ,  for  the  sum  of  six  thousand  dollars, 

which  notes  are  severally  secured  by  the  lands  and  tenements,  mortgaged  as 
aforesaid ;  also  a  note  of  hand  signed  by  ,  for  the  sum  of  one  thou- 

sand dollars. 

All  which  real  and  personal  estate  the  said  party  of  the  first  part  is  desirous 
that  the  party  of  the  second  part  should  have  and  hold  in  trust  for  certain  uses 


MABRIED  WOMEN.  41 

and  purposes  hereinafter  set  forth  and  expressed ;  and  in  conformity  with  said  in- 
tention, and  for  the  purpose  of  carrying  the  same  into  effect,  the  said  party  of  the 
.first  part,  in  consideration  of  the  sum  of  five  dollars  paid  to  her  by  the  party  of 
the  second  part,  the  receipt  of  which  she  doth  hereby  acknowledge,  and  for  divers 
other  good  considerations  moving  her  thereto,  hath  given,  granted,  sold,  and 
conveyed,  and  doth  give,  grant,  bargain,  sell,  and  convey,  all  the  said  lands,  tene- 
ments, and  real  estate,  and  doth  hereby  bargain,  sell,  transfer,  assign,  and  set  over 
all  the  aforesaid  chattels  and  personal  estate,  as  the  same  are  above  specified  and 
described,  unto  the  said  and  ,  and  their  heirs  and  as- 

signs.    To  have  and  to  hold  the  said  granted  premises  unto  the  said 
and  ,  and  their   heirs  and  assigns,  and  to  the  survivor  of  them 

and  his  heirs  and  assigns  forever  to  their  own  use,  but  in  trust  nevertheless  for  the 
purposes,  objects,  and  intents  hereinafter  set  forth  and  expressed,  and  for  none 
other,  namely : 

First,  That  the  said  trustees  and  their  successors  in  the  said  trust  shall  permit 
the  said  party  of  the  first  part,  without  any  hinderance  or  interference  by  them,  so 
long  as  she  shall  remain  sole  and  unmarried,  and  shall  see  fit  so  to  do,  to  receive 
and  take  in  her  proper  person,  or  by  her  agent  or  attorney,  the  rents,  income, 
dividends,  interest,  and  profits  of  the  said  trust  estate,  real  and  personal,  without 
any  accountability  therefor,  to  them  the  said  parties  of  the  second  part ;  but  if 
required  by  her,  the  said  party  of  the  first  part,  so  to  do,  the  said  trustees  and  their 
successors  shall  collect  and  receive  the  said  rents,  income,  and  profits  of  the  trust 
estate,  and  shall  from  time  to  time  pay  over  the  same  unto  the  said  party  of  the 
first  part  for  her  own  use. 

Secondly,  That  from  and  after  the  solemnization  of  the  marriage  of  the  said 
party  of  the  first  part,  whenever  that  event  may  take  place,  the  said  trustees  and 
their  successors  shall  collect,  take,  and  receive  all  the  rents,  income,  and  profits  of 
the  trust  estate,  real  and  personal,  and  shall  from  tune  to  time  pay  over  the  same 
to  the  said  party  of  the  first  part,  to  and  upon  her  separate  order  or  receipt,  made 
and  signed  by  her,  at  or  about  the  tune  of  such  payments  respectively  and  for  her 
proper  use,  free  from  the  control  or  interference  of  any  husband  she  may  have. 

Thirdly,  That  at  and  after  the  decease  of  said  party  of  the  first  part,  the  said 
trustees  and  their  successors  shall  be  seized  and  possessed  of  the  said  trust  estate 
to  and  for  the  use  of  such  person  or  persons  as  the  said  party  of  the  first  part,  by 
any  last  will  and  testament,  duly  executed,  if  she  die  sole  and  unmarried,  or,  in 
case  she  be  at  her  decease  a  married  woman,  by  any  paper  writing  signed  by  her 
in  presence  of  two  or  more  credible  witnesses,  shall  order,  and  appoint  to  take,  re- 
ceive, and  hold  the  same,  and  hi  such  shares  and  manner,  and  upon  such  terms  and 
conditions,  as  she  shall  direct,  order,  and  appoint  as  aforesaid ;  and  in  case  the  said 
party  of  the  first  part  shall  omit  to  make  any  such  will  or  testamentary  appoint- 
ment, then  the  said  trustees  and  their  successors  shall  hold  the  trust  estate  to  the 
use  of  such  person  or  persons  as  by  the  laws  of  this  Commonwealth  would,  in  case 
the  party  of  the  first  part  had  died  seized  and  possessed  of  the  then  existing  trust 
property  in  her  own  right,  have  been  entitled  to  the  same  as  heirs-at-law,  or  dia- 


42  MARRIED  WOMEN. 

tributees  ;  provided  always  that  in  such  case  the  husband  of  the  said  party  of  the 
first  part,  if  she  leave  a  husband,  shall  be  entitled  to  his  life  estate  in  all  the  real 
estate,  as  if  he  were  tenant  by  the  curtesy  in  and  of  the  same,  and  be  subject  t« 
all  the  duties  incident  to  a  tenant  by  the  curtesy. 

Fourthly,  That  the  said  trustees  and  their  successors  shall  keep  the  said  trusi 
estate,  real  and  personal,  constantly  invested  in  the  most  safe  and  profitable  man- 
ner in  their  power,  but  relying  always  on  their  discretion  in  this  behalf,  and  shall 
accordingly  have  power  to  sell  and  dispose  of  any  of  the  said  trust  estate,  and  to 
make  and  pass  all  necessary  deeds  and  instruments  of  conveyance  thereof,  and  to 
purchase  any  other  estate,  real  or  personal,  and  the  same  to  sell  again,  and  so  from 
time  to  time  to  change  the  property  composing  the  trust  fund  and  estate ;  pro- 
vided always  that  all  real  and  personal  estate  which  may  be  purchased  by  them 
the  said  trustees  with  the  trust  moneys,  or  the  proceeds  of  sale  of  the  trust  prop- 
erty, shall  be  conveyed  and  assigned  to  them  and  their  successors  as  trustees  as 
aforesaid,  and  shall  be  holden  always  upon  the  same  trusts,  and  with  the  same  pow- 
ers, and  for  the  same  purposes,  as  are  set  forth  and  declared  in  this  indenture  of 
and  concerning  the  estate  firstly  above  described  and  conveyed  to  the  said  trustees. 

Fifthly,  That  the  said  trustees  or  their  successors,  in  case  the  said  party  of  the 
first  part  shall  so  order  and  direct,  shall  invest  the  trust  money  or  estate,  or  such 
part  thereof  as  they  shall  be  ordered  as  aforesaid,  in  the  purchase  of  such  house 
for  the  habitation  and  dwelling  of  the  said  ^arty  of  the  first  part  as  she  may  select, 
and  shall  lay  out  and  expend  such  other  part  of  the  said  trust  money  and  estate 
as  she,  the  said  party,  shall  order  and  direct,  in  the  purchase  of  such  furniture, 
plate,  horses,  and  equipages,  as  she  may  choose  and  select  for  her  own  use ;  and 
shall  permit  her,  the  said  party  of  the  first  part,  with  any  husband  she  may  have, 
to  occupy  and  inhabit  the  said  house,  and  to  use  and  enjoy  the  said  furniture, 
plate,  carriages,  and  horses  without  impeachment  of  waste,  and  without  any  ac- 
countability to  them  the  said  trustees  for  the  reasonable  wear  and  use  thereof,  or 
injury  by  casualty ;  and  the  trustees  shall  keep  the  said  house  and  furniture  insured 
against  fire,  and,  in  case  of  loss  or  injury  by  fire,  shall  lay  out  and  expend  the 
money  which  they  may  receive  from  the  assurers,  in  the  repairing  or  rebuilding  of 
the  said  house,  if  so  directed  by  the  said  party  of  the  first  part,  and  hi  the  purchase 
of  other  and  new  furniture,  plate,  horses,  and  equipages  in  place  of  those  which 
have1  been  injured  or  destroyed  by  fire,  and  shall  permit  the  said  party  of  the  first 
part  to  use  and  enjoy  the  same  in  manner  aforesaid.  And  the  said  trustees  and 
their  successors  shall,  when  required  by  the  said  party  of  the  first  part  so  to  do, 
sell  and  dispose  of  any  house  which  may  have  been  purchased  by  them  for  the  per- 
sonal occupation  and  habitation  of  the  said  party  of  the  first  part,  and  shall  in 
manner  aforesaid  lay  out  the  proceeds  of  sale  of  such  house,  and  such  other  moneys 
as  she  shall  direct,  in  the  purchase  of  such  other  house  as  she  shall  select  and  direct 
them  to  purchase,  and  shall  permit  her  to  occupy  the  same  hi  manner  above  set 
forth  and  expressed ;  and  they  shall  also,  when  directed  by  the  said  party  of  the 
first  part,  sell  and  dispose  of  any  of  the  furniture  and  other  chattels,  so  as  afore- 
said, purchased  by  them  for  her  use,  and  shall  from  time  to  time  lay  out  and  ex 


MAEEIED  WOMEN.  43 

pend  the  proceeds  of  such  sales  and  such  other  sums  of  money  as  they  shall  be 
directed  by  the  said  party  of  the  first  part  to  do,  in  the  purchase  of  such  other 
furniture,  plate,  horses,  and  equipages  as  she  shall  select  for  her  own  use ;  and 
shall  permit  her  to  use  and  enjoy  the  same  in  manner  aforesaid :  provided  always 
that  in  case  of  any  attempt  by  any  person  to  sell  or  remove  the  said  furniture  or 
other  chattels  out  of  the  personal  care  and  custody  of  the  party  of  the  first  part, 
without  the  consent  of  the  trustees,  they  shall  forthwith  take  possession  thereof, 
and  convert  the  chattels  so  attempted  to  be  removed  or  sold,  into  money,  and  shall 
hold  the  said  money  upon  the  trusts  and  for  the  uses  set  forth  in  this  indenture ; 
and  in  all  the  cases  in  which  any  order  or  direction  shall  be  given  by  the  said  party 
of  the  first  part  it  shall  be  in  writing,  and  be  signed  by  her  in  presence  of  one  wit- 
ness at  least. 

Sixthly,  That  in  case  of  the  decease  of  the  said  trustees,  or  either  of  them, 
others  shall  be  nominated  by  the  party  of  the  first  part  (if  she  see  fit  so  to  do),  to  be 
appointed  as  trustees  in  the  place  of  the  deceased ;  and  upon  such  nomination  being 
made  and  notified  to  the  surviving  trustee,  he  shall  forthwith,  if  such  person  be 
suitable,  make  and  execute  all  such  instruments  in  the  law  as  shall  be  needful  in 
the  opinion  of  counsel,  to  associate  such  person  in  the  said  trust,  and  to  transfer 
and  convey  to  him  the  same  interest  in  the  trust  estate,  with  the  same  powers 
over  the  same,  and  subject  to  the  same  duties,  as  are  vested  in  and  assumed  by  the 
parties  of  the  second  part  in  and  by  this  instrument  and  the  laws  of  the  land. 
And  in  case  either  of  the  said  trustees,  the  parties  of  the  second  part,  or  then-  suc- 
cessors, shall  wish  to  resign  said  trust,  they  shall  be  at  liberty  to  do  so,  first  giving 
reasonable  notice  to  the  party  of  the  first  part,  that  she  may  find  some  suitable 
person,  who  shall  be  acceptable  to  the  remaining  trustee,  to  assume  the  said  trust 
in  place  of  the  trustee  resigning ;  and  the  same  proceedings  shall  then  be  had  for 
the  introduction  and  appointment  of  a  new  trustee  as  are  above  provided  in  case 
of  the  decease  of  a  trustee ;  and  in  case  of  the  decease  or  resignation  at  any  time 
of  any  of  the  persons  who  may  be  hereafter  appointed  trustees,  in  manner  afore- 
said, similar  proceedings  shall  be  had  for  supplying  the  vacancy  created  by  such 
decease  or  resignation.  And  the  trust  fund,  property,  and  estate  shall  always  be 
had  and  held  by  the  persons  so  appointed  from  time  to  time  in  trust  for  the  uses 
and  purposes  set  forth  in  this  indenture,  and  none  other.  And  all  nominations 
made  as  aforesaid  shall  be  in  writing. 

Seventhly,  That  the  purchasers  of  any  estate,  real  or  personal,  which  may  be 
sold  and  conveyed  by  the  trustees  under  this  indenture,  shall  not  be  bound  to  see 
to  the  application  of  the  purchase-money ;  but  the  receipt  and  acquittance  of  the 
trustees  shall  be  a  full  and  adequate  discharge  to  such  purchasers  for  such  pur- 
chase-money. 

Eighthly,  That  all  the  expenses  and  incidental  charges  of  the  trustees  shall  be 
deducted  from  the  income  of  the  trust  property,  as  well  as  a  reasonable  allowance 
to  the  trustees  for  their  own  services. 

Ninthly,  That  the  resignation  of  any  trustee  shall  not  be,  nor  be  pleaded  as,  a 
bar  to  the  chancery  jurisdiction  of  the  courts  of  the  Commonwealth,  in  case  a 
resort  against  such  trustee  to  the  said  court  shall  be  necessary. 

5 


44  MAEEIED  WOMEN. 

Tentlily,  That  the  trustees  under  this  indenture,  each  for  himself  and  not  for 
each  other,  shall  be  responsible  for  the  want  of  due  diligence  only  in  the  execution 
of  the  said  trusts,  and  for  their  wilful  defaults,  and  in  case  of  the  omission  by 
the  party  of  the  first  part  to  nominate  a  successor  to  either  of  the  parties  of  the 
second  part,  or  to  any  person  appointed  instead  of  them,  or  either  of  them  who 
may  resign  or  decease,  the  surviving  or  continuing  trustee  shall  have  power  and 
authority  to  execute  all  the  trusts  herein  specified  and  declared,  in  as  ample  man- 
ner as  both  the  said  parties  of  the  second  part  might  jointly  have  done. 

In  Testimony  Whereoij  The  said  and  hereto 

set  their  hands  and  seals,  the  day  and  year  first  above  written. 

(Signatures.)     (Seals.) 
Signed,  Sealed  and  Delivered  in  Presence  of 
(  Witnesses.) 

MAY        18 

Then  the  within-named  acknowledged  this  instrument  to  be  his 

free  act  and  deed  before  me. 

(Signed)  Justice  of  the  Peace. 

(5.) 

Another  Form  of  Indenture  in  Trust,  for  Property  of  Unmarried 

Woman. 

This  Indenture,  Made  and  concluded  this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ,  by  and  between 

,  of  in  the  county  of  ,  singlewoman,  of  t)ie  one  part, 

and  of  said  the  father  of  the  said  ,  of  the 

other  part :  Witnesseth, 

Whereas  the  said  is  seized  and  possessed  in  her  own  right,  as 

tenant  in  common,  of  one  undivided  fifth  part  of  the  following-described  real  estate ; 

and  is  also  seized  and  possessed  of  and  in  one  undivided  fifth  part  of  a  certain  piece 
of  land,  situate  on  Street  hi  said  ;  with  the  buildings  thereon 

standing,  and  privileges  and  appurtenances  thereto  belonging ;  the  whole  of  which 
were  conveyed  by  to  ,  by  deed  bearing  date 

the  twenty-eighth  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

,  and  recorded  in  the  Registry  of  Deeds  for  said  county,  lib.  ,  foL  : 
also  of  and  in  one  undivided  fifth  of  one  undivided  fortieth  part  of  thirty  acres  of 
land  situate  in  said  ;  which  was  conveyed  to  , 

by  ,  by  deed  bearing  date  the  eighteenth  day  of  ,  in  the  year 

of  our  Lord  eighteen  hundred  ,  and  recorded  with  Suffolk  Deeds,  lib.        , 

fbl.        .    And  whereas  the  said  is  possessed  of  the  following  personal 

estate  :  to  wit,  of  eighteen  thousand  dollars  in  the  capital  stock,  or  shares,  of  the 

Bank  in  said  ,  as  appears  by  a  certificate  thereof, 

and  is  also  possessed  of  the  promissory  note  of  said  for  the  sum  of 


MAEKIED   WOMEN.  45 

fifteen  hundred  dollars,  dated  the  ninth  day  of  last,  and  payable  by  instal- 

ments of  five  hundred  dollars  in  one,  two,  and  three  years  therefrom ;  and  of 
another  promissory  note  of  said  ,  for  five  hundred  dollars,  dated  the  seven- 

teenth day  of  last,  and  payable  in  one  year  therefrom ;  and  also  of  the  bond 

of  ,  and  ,  dated  the  seventh  day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ,  conditioned  for  the  payment  of  five 

hundred  dollars  and  interest,  and  of  the  principal  of  which  there  has  been  paid  one 
hundred  and  fifty  dollars,  and  all  the  interest  up  to  the  seventh  day  of  last. 

And  whereas  she,  the  said  ,  is  desirous  of  securing  the  said  estate, 

both  real  and  personal,  in  the  event  of  her  marriage,  to  her  sole  use  and  benefit ; 
and  for  this  purpose  it  hath  been  agreed,  that  all  the  estate  and  property  aforesaid 
shall  be  granted,  assigned,  and  transferred  unto  the  said  ,  and  to  such 

other  trustee  as  shall  hereafter  be  appointed  according  to  the  provisions  hereinafter 
expressed,  to  be  held  in  trust  by  them  for  the  separate  and  sole  use  and  benefit  of 
her,  the  said  ,  and  her  heirs  (notwithstanding  any  such  coverture),  upon 

the  terms  and  conditions,  for  the  uses,  intents,  and  purposes,  under  the  limitations, 
and  for  and  during  the  time,  as  hereinafter  is  expressed. 

Now,  this  indenture  witnesseth,  that  the  said  ,  in  consideration 

of  the  premises,  and  of  the  covenants  hereinafter  contained,  and  also  of  one  dollar 
now  paid  to  her  by  the  said  ,  the  receipt  whereof  is  hereby  ac- 

knowledged, hath  granted,  bargained,  sold,  and  transferred,  and  by  these  presents 
doth  grant,  bargain,  sell,  and  transfer,  unto  the  said  ,  his  heirs  and 

assigns,  forever,  all  the  real  and  personal  estate,  stocks,  notes,  and  bond,  herein- 
before described  and  specified : 

To  have  and  to  hold  the  same  to  him,  the  said  ,  his  heirs  and 

assigns,  forever,  to  and  for  the  several  uses,  trusts,  and  purposes,  and  subject  to 
the  several  provisions,  limitations,  powers,  and  agreements,  hereinafter  limited, 
declared,  and  expressed ;  that  is  to  say,  to  the  sole  use  and  behoof  of  the  said 
and  her  heirs  until  the  solemnization  of  any  such  marriage,  and,  from  and  imme- 
diately afterwards,  to  and  for  the  following  uses,  intents,  and  purposes :  to  wit, 

That  the  said  estate,  both  real  and  personal,  stocks,  notes,  and  bond,  shall  be 
held,  during  the  natural  life  of  the  said  ,  by  him,  the  said  , 

and  by  such  other  trustee  as  shall  be  appointed  for  that  purpose  in  the  manner 
hereinafter  expressed  and  provided,  to  the  sole  use  and  separate  benefit  of  her,  the 
said  ,  without  being  liable  to  the  debts,  incumbrances,  or  control 

of  any  husband  she  may  have  during  the  existence  and  continuance  of  said  trust : 
that  said  shall,  from  time  to  time,  lease  and  demise  said  real 

estate  to  the  best  profit  and  advantage ;  and,  at  such  time  as  he  shall  see  fit  and 
think  proper,  sell  and  dispose  of  all  or  any  part  of  said  real  estate,  upon  the  most 
advantageous  terms,  for  the  interest  of  said  ;  and  shall  invest  the 

proceeds  thereof  in  the  safest  and  most  productive  funds ;  and,  upon  payment  of 
the  capital  stocks,  notes,  or  bond  aforesaid,  invest  the  same  in  like  manner :  that 
he  shall  pay  all  the  rents  and  profits  of  said  real  estate  while  unsold,  and  the  clear 
interest  and  income  of  said  funds,  and  also  the  clear  interest  and  income  of  said 


46  MAEEIED  WOMEX. 

personal  property  hereby  assigned,  and  all  the  net  profits  arising  and  accruing 
therefrom,  as  well  as  such  portion  of  the  principal  as  he  shall  judge  necessary  for 
her  convenience  and  support,  unto  her,  the  said  ,  or  to  such  per- 

son or  persons  as  she  shall  in  writing,  without  the  signature  or  interference  of  any 
husband,  appoint,  for  and  during  the  natural  life  of  her,  the  said  ; 

that  is  to  say,  for  and  during  the  term  for  which  said  trust  shall 

continue,  according  to  the  provisions  and  limitations  hereinafter  expressed ;  and, 
after  the  decease  of  the  said  ,  the  remaining  income  and  profit 

unpaid,  to  the  child  or  children  of  the  said  ,  if  she  shall  leave  any ; 

and,  upon  such  decease,  grant,  convey,  and  transfer  the  same  estate,  both  real  and 
personal,  and  any  investments  in  funds,  unto  such  child  or  children,  his  and  their 
heirs  and  assigns,  forever ;  and  also  grant  and  convey,  in  like  manner,  any  real 
estate  which  may  be  purchased  with  the  proceeds  of  said  property  :  and,  in  case 
the  said  should  die  without  issue,  then  to  grant,  convey,  and  transfer 

the  same,  in  like  manner,  unto  the  heirs-at-law  of  her  the  said 

And  the  said  ,  for  himself,  his  heirs,  executors,  and  adminis- 

trators, doth  covenant,  grant,  and  agree,  to  and  with  the  said  ,  her 

executors  and  administrators,  that  in  case  she,  the  said  ,  should 

desire  any  real  estate  to  be  purchased  with  any  part  of  said  capital  stock,  funds,  or 
interest,  of  the  estate  and  property  hereby  conveyed,  and  it  should  be  deemed 
advantageous  and  proper  by  the  said  to  comply  therewith,  then 

he  will  make  a  purchase  thereof,  and  take  deeds  of  conveyance  of  such  estate  in 
his  own  name,  and  will  hold  the  same  subject  to  the  like  trusts,  limitations,  powers, 
and  agreements  as  are  herein  limited,  declared,  and  expressed  ;  and  will  pay  over 
the  rents  and  income  thereof  as  is  above  provided,  unless  she,  the  said  f 

shall  choose  to  occupy  and  live  on  the  same ;  and,  in  such  case,  no  rents  shall  be 
exacted  or  required  of  any  husband  of  the  said  .  And  in  case  of 

mental  infirmity,  or  any  other  incapacity,  which  shall,  in  the  opinion  of  the  Judge 
of  Probate  for  the  County  of  for  the  time  being,  prevent  a  suitable  execu- 

tion of  the  aforesaid  trusts  by  him,  the  said  ,  he  does  also  covenant 

as  aforesaid  to  grant,  sell,  and  transfer  the  aforesaid  estate  and  property,  both  real 
and  personal,  which  shall  then  remain  in  his  possession  and  under  his  control,  and 
such  other  as  he  may  have  purchased  in  pursuance  of  the  trusts  aforesaid,  unto  any 
trustee  who  shall  be  appointed  by  the  said  Judge  of  Probate  for  the  tune  being 
(who,  on  the  happening  of  such  infirmity  or  other  incapacity,  is  hereby  authorized 
to  make  such  appointment)  ;  to  have  and  to  hold  the  same  to  such  trustee,  subject 
to  the  several  provisions,  limitations,  powers,  and  agreements,  and  upon  the  same 
intent,  uses,  and  trusts,  in  like  manner  as  held  by  him,  said  .  And 

upon  the  happening  of  the  death  of  him,  the  said  ,  he  doth  further 

covenant  that  his  heirs  or  executors  or  administrators  shall  and  will,  as  soon  as 
practicable  thereafter,  make  good  and  sufficient  instruments  of  conveyance  to 
transfer  and  grant  the  aforesaid  estate,  both  real  and  personal,  or  such  parts 
thereof  as  shall  then  remain  undisposed  of,  and  such  as  may  be  purchased  by  him, 
said  f  in  pursuance  of  the  trusts  and  intent  of  this  indenture,  unto 


THE  LEGAL  MEANING  OP  AGBEEMENT.  47 

such  person  as  shall  be  appointed  the  trustee  of  the  said  for  that 

purpose  by  the  said  Judge  of  Probate  for  the  time  being ;  who  is,  in  that  event, 
authorized  to  make  the  appointment.  And  the  said  doth  also 

further  covenant  as  aforesaid,  that  upon  the  death  of  the  said  ,  if  he 

shall  then  be  her  trustee  under  the  provisions  of  this  indenture,  he  will  grant, 
transfer,  and  assign  all  and  singular  the  estate  and  property,  both  real  and  personal, 
which  he  may  then  hold  under  the  grant  and  trusts  aforesaid,  unto  the  child  or 
children  of  her,  the  said  ,  if  she  shall  leave  any.  But  no  grant 

and  conveyance,  as  is  above  provided,  shall  be  made  unto  any  such  trustee  until  he 
shall  have  given  bond,  with  sufficient  sureties,  to  the  Judge  of  Probate  for  said 
county  for  the  time  being,  for  the  benefit  of  the  said  and  her 

heirs,  upon  condition  that  he,  the  said  trustee,  his  heirs,  executors,  or  adminis- 
trators, shall  hold  the  said  estate  and  property,  to  be  granted  and  transferred, 
subject  to  all  the  limitations,  provisions,  powers,  and  agreements,  and  for  the 
several  uses,  purposes,  and  trusts,  in  this  indenture  limited,  declared,  and  expressed ; 
and  upon  the  condition  that  he  shall  at  all  times  well  and  truly  observe,  fulfil,  and 
perform  the  same. 

And  the  said  trustee  so  appointed  shall  thereupon  have  all  the  powers,  and  be 
bound  to  perform  all  the  duties,  enjoined  upon  and  required  by  this  indenture,  of 
him,  the  said 

In  "Witness  Whereof,  The  said  parties  have  hereto  interchangeably  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

.  (Signatures.)     (Seals.) 

Signed,  Sealed  and  Delivered  in  Presence  of 
(Witnesses.) 

,  ss.    30th  September,  A.D.  18 

Then  personally  appeared  the  above-named  and  , 

and  severally  acknowledged  this  indenture  to  be  their  free  act  and  deed. 

(Signature.)        Justice  of  i\e  Peace. 


CHAPTER    VI. 

A.S8E1VT. 


SECTION  I. 
THE    LEGAL    MEANING    OF    AGREEMENT. 

No  contract  which  the  law  will  recognize  and  enforce  exists,  until 
the  parties  to  it  have  agreed  upon  the  same  thing,  in  the  same 
sense.  Thus,  in  a  case  where  the  defendants  by  letter  offered  to 


48  AGKEEMENT  AND  ASSENT. 

the  plaiiitiffs  a  certain  quantity  of  "good"  barley,  at  a  certain 
price.  Plaintiffs  replied :  "  We  accept  your  offer,  expecting  you 
will  give  us  fine  barley  and  full  weight."  The  jury  found  that 
there  was  a  distinction  in  the  trade  between  the  words  "  good  "  and 
"  fine,"  and  the  court  held  that  there  was  not  a  sufficient  acceptance 
to  sustain  an  action  for  non-delivery  of  the  barley.  So  where  a 
person  sent  an  order  to  a  merchant  for  a  particular  quantity  of 
goods  on  certain  terms  of  credit,  and  the  merchant  sent  a  less 
quantity  of  goods,  and  at  a  shorter  credit,  and  the  goods  were 
lost  by  the  way,  it  was  held  by  the  court  that  the  merchant  must 
•bear  the  loss ;  for  there  was  no  sale  or  contract  between  the  par- 
ties. 

There  is  an  apparent  exception  to  this  rule,  when,  for  example, 
A  declares  that  he  was  not  understood  by  B,  or  did  not  understand 
B,  in  a  certain  transaction,  and  that  there  is  therefore  no  bargain 
between  them ;  and  B  replies  by  showing  that  the  language  used  on 
both  sides  was  explicit  and  unequivocal,  and  constituted  a  distinct 
contract.  Here,  B  would  prevail.  The  reason  is,  that  the  law  pre- 
sumes that  every  person  means  that  which  he  distinctly  says.  If  A 
had  offered  to  sell  B  his  horse  for  twenty  dollars,  and  received  the 
money,  and  then  tendered  to  B  his  cow,  on  the  ground  that  he  was 
thinking  only  of  his  cow,  and  used  the  word  horse  by  mistake,  this 
would  not  avoid  his  obligation,  unless  he  could  show  that  the 
mistake  was  known  to  B  ;  and  then  the  bargain  would  be  fraudu- 
lent on  B's  part.  This  would  be  an  extreme  case ;  but  difficult 
questions  of  this  sort  often  arise.  If  A  had  agreed  to  sell,  and  had 
actually  delivered,  a  cargo  of  shingles  at  "  3.25,"  supposing  that  he 
was  to  receive  that  price  for  a  "  bunch,"  which  contains  five  hun- 
dred, and  B  supposed  that  he  had  bought  them  at  that  price  for  a 
"  thousand,"  which  ,view  should  prevail  ?  The  answer  would  be, 
first,  that  if  there  was,  honestly  and  actually,  a  mutual  mistake, 
there  was  no  contract,  and  the  shingles  should  be  returned.  But, 
secondly,  if  a  jury  should  be  satisfied,  from  the  words  used,  from 
the  usage  prevailing  where  the  bargain  was  made  and  known  to  the 
parties,  or  from  other  circumstances  attending  the  bargain,  that  B 
knew  that  A  was  expecting  that  price  for  a  bunch,  B  would  have  to 
pay  it ;  and  if  they  were  satisfied  that  A  knew  that  B  supposed  him- 


WHAT  IS  AN  ASSENT.  49 

self  to  be  buying  the  shingles  by  the  thousand,  then  A  could  not 
reclaim  the  shingles,  nor  recover  more  than  that  price.  There  was 
such  a  case  so  decided. 

In  construing  a  contract,  the  actual  and  honest  intention  of  the 
parties  is  always  regarded  as  an  important  guide.  But  it  must  be 
their  intention  as  expressed  in  the  contract. 

If  the  parties,  or  either  of  them,  show  that  a  bargain  was  honestly 
but  mistakenly  made,  which  was  materially  different  from  that  in- 
tended to  be  made,  it  would  be  a  good  ground  for  declaring  that 
there  was  no  contract. 

Mistakes  of  fact  in  a  contract  can  be  corrected  by  the  courts,  but 
not  mistakes  of  law ;  no  man  being  permitted  to  take  advantage  of  a 
mistake  of  the  law,  either  to  enforce  a  right,  or  avoid  an  obligation  ; 
for  it  would  be  obviously  dangerous  and  unwise  to  encourage  igno- 
rance of  the  law,  by  permitting  a  party  to  profit,  or  to  escape,  by  his 
ignorance.  But  the  law  which  one  is  required  at  his  peril  to  know, 
is  the  law  of  his  own  country.  Ignorance  of  the  law  of'  a  foreign 
state  is  ignorance  of  fact.  In  this  respect  the  several  States  of  the 
Union  are  foreign  to  each  other.  Hence,  money  paid  through 
ignorance  or  mistake  of  the  law  of  another  State  may  be  recovered 
back. 

Fraud  annuls  all  obligation  and  all  contracts  into  which  it  enters, 
and  the  law  relieves  the  party  defrauded.  If  both  of  the  parties  act 
fraudulently,  neither  can  take  advantage  of  the  fraud  of  the  other ; 
and  if  one  acts  fraudulently,  he  cannot  set  his  .own  fraud  aside  for 
his  own  benefit.  Thus,  if  one  gives  a  fraudulent  bill  of  sale  of  prop- 
erty, for  the  purpose  of  defrauding  his  creditors,  lie  cannot  set  that 
bill  aside  and  annul  that  sale,  although  those  who  are  injured  by  it 
may. 


SECTION  n. 

WHAT    IS    AN    ASSENT. 

THE  most  important  application  of  the  rule  stated  at  the  begin- 
ning of  this  chapter,  is  the  requirement  that  an  acceptance  of  a 
proposition  must  be  a  simple  and  direct  affirmative,  in  order  to  con- 


50  AGREEMENT  AND  ASSENT. 

stitute  a  contract.  For  if  the  party  receiving  the  proposition  or  offer 
accepts  it  on  any  condition,  or  with  any  change  of  its  terms  or  pro- 
visions which  is  not  altogether  immaterial,  it  is  no  contract  until  the 
party  making  the  offer  consents  to-  these  modifications. 

Therefore,  if  a  party  offers  to  buy  certain  goods  at  a  certain  price, 
and  directs  how  the  goods  shall  be  sent  to  him,  and  the  owner 
accepts  the  offer  and  sends  the  goods  as  directed,  and  they  are  lost 
on  the  way,  it  is  the  buyer's  loss,  because  the  goods  were  his  by  the 
sale,  which  was  completed  when  the  offer  was  accepted.  But  if  the 
owner  accepts  the  offer,  and  in  his  acceptance  makes  any  material 
modification  of  its  terms,  and  then  sends  the  goods,  and  they  are 
lost,  it  is  his  loss  now,  because  the  contract  of  sale  was  not  com- 
pleted. 

Nor  will  a  voluntary  compliance  with  the  conditions  and  terms  of 
a  proposed  contract  always  make  it  a  contract  obligatory  on  the 
other  party,  unless  there  have  been  an  accession  to,  or  an  acceptance 
of,  the  proposition  itself.  In  general,  if  A  says  to  B,  if  you  will  do 
this,  I  will  do  that ;  and  B  instantly  does  what  was  proposed  to  him, 
this  doing  so  is  an  acceptance,  and  A  is  bound.  But  if  the  doing  of 
the  thing  may  oe  something  else  than  an  acceptance  of  the  offer,  or  if 
the  thing  may  be  done  for  some  other  reason  than  to  signify  an 
acceptance  or  assent,  there  must  be  express  acceptance  also,  or  there 
is  no  bargain. 


SECTION  m. 

OFFERS    MADE    ON    TIME. 

IT  sometimes  happens  that  one  party  makes  another  a  certain 
offer,  and  gives  him  a  certain  time  in  which  he  may  accept  it.  The 
law  on  this  subject  was  once  somewhat  uncertain,  but  may  now  be 
considered  as  settled.  It  is  this.  If  A  makes  an  offer  to  B,  which 
B  at  once  accepts,  there  is  a  bargain.  But  it  is  not  necessary  that 
the  acceptance  should  follow  the  offer  instantaneously.  B  may  take 
time  to  consider,  and  although  A  may  expressly  withdraw  his  offer 
at  any  time  before  acceptance,  yet  if  he  does  not  do  so,  B  may 
accept  within  a  reasonable  time ;  and  if  this  is  done,  A  cannot  say:  "  I 


A  BARGAIN  BY  CORRESPONDENCE.  51 

have  changed  my  inind."  What  is  a  reasonable  time  must  depend 
upon  the  circumstances  of  each  case.  If  A  when  he  makes  the  offer 
says  to  B  that  he  may  have  a  certain  time  wherein  to  accept  it,  and 
is  paid  by  B  for  thus  giving  him  time,  he  cannot  withdraw  the  offer ; 
or  if  he  withdraws  it,  for  this  breach  of  his  contract,  the  other  party, 
B,  may  have  his  action  for  damages.  If  A  is  not  paid  for  giving  the 
time,  A  may  then  withdraw  the  offer  at  once,  or  whenever  he  pleases, 
provided  B  has  not  previously  accepted  it.  But  if  B  has  accepted 
the  offer  before  the  time  which  was  given  expired,  and  before  the 
offer  was  withdrawn,  then  A  is  bound,  although  he  gave  the  time 
voluntarily  and  without  consideration.  For  his  offer  is  to  be  re- 
garded as  a  continuing  offer  during  all  the  time  given,  unless  it  be 
withdrawn.  A  railroad  company  asked  for  the  terms  of  certain  land 
they  thought  they  might  wish  to  buy.  The  owner  said  in  a  letter, 
they  might  have  it  at  a  certain  price,  if  they  took  it  within  thirty 
days.  After  some  twenty-five  days,  the  railroad  company  wrote 
accepting  the  offer.  The  owner  says,  No,  I  have  altered  my  mind ; 
the  land  is  worth  more  ;  and  I  have  a  right  to  withdraw  my  offer, 
because  you  paid  me  nothing  for  the  time  of  thirty  days  allowed 
you.  But  the  court  held  that  he  was  bound,  because  this  was  an 
offer  continued  through  the  thirty  days,  unless  withdrawn.  They 
said  that  the  writing  when  made  was  without  consideration,  and  did 
not  therefore  form  a  contract.  It  was  then  but  an  offer  to  contract, 
and  the  party  making  the  offer  most  undoubtedly  might  have  with- 
drawn it  at  any  time  before  acceptance.  But  when  the  offer  was 
accepted,  the  minds  of  the  parties  met,  and  the  contract  was  com- 
plete, and  no  withdrawal  could  then  be  made. 


SECTION  IV. 

A    BARGAIN    BY    CORRESPONDENCE. 

WHEN  a  contract  is  made  by  correspondence,  the  question  occurs, 
At  what  time,  or  by  what  act,  is  the  contract  completed  ?  The  law  as 
now  settled  in  this  country  may  be  stated  thus.  If  A  writes  to  B  pro- 
posing to  him  a  contract,  this  is  a  continued  proposition  or  offer  of 


52  AGREEMENT  AND  ASSENT. 

A  until  it  reaches  B,  and  for  such  time  afterwards  as  would  give  B  a 
reasonable  opportunity  of  accepting  it.  It  may  be  withdrawn  by  A 
at  any  time  before  acceptance ;  but  is  not  withdrawn  in  law  until  a 
notice  of  withdrawal  reaches  B.  This  is  the  important  point.  Thus 
if  A,  in  Boston,  writes  to  B,  in  New  Orleans,  offering  him  a  certain 
price  for  one  hundred  bales  of  cotton ;  and  the  next  day  alters  his 
mind,  and  writes  to  B,  withdrawing  his  offer  ;  if  the  first  letter 
reaches  B  before  the  second  reaches  him,  although  after  it  was  writ- 
ten and  mailed,  B  has  a  right  to  accept  the  offer  before  he  gets  the 
letter  withdrawing  it,  and  by  his  acceptance  he  binds  A.  But  if  B 
delays  his  acceptance  until  the  second  letter  reaches  him,  the  offer  is 
then  effectually  withdrawn.  It  is  a  sufficient  acceptance  if  B  writes 
to  A  declaring  his  acceptance,  and  puts  his  letter  into  the  post-office. 
It  seems  now  quite  clear,  that  as  soon  as  the  letter  leaves  the  post- 
office,  or  is  beyond  the  reach  of  the  writer,  the  acceptance  is  com- 
plete. That  is,  on  the  5th  of  May,  A  in  Boston  writes  to  B,  in  New 
Orleans,  offering  to  buy  certain  goods  there  at  a  certain  price.  On 
the  8th  of  May,  A  writes  that  he  has  altered  his  mind  and  cannot 
give  so  much,  and  mails  the  letter.  On  the  14th  of  May,  B  in  New 
Orleans  receives  the  first  letter,  and  the  next  day,  the  loth,  answers 
it,  saying  that  he  accepts  the  offer  and  mails  his  letter.  On  the  17th, 
he  receives  the  second  letter  of  A  withdrawing  the  offer.  Neverthe- 
less the  bargain  is  complete  and  the  goods  are  sold.  But  if  B  had 
kept  his  letter  of  acceptance  by  him  until  he  had  received  A's  letter 
of  withdrawal,  he  could  not  then  have  put  his  letter  into  the  mail 
and  bound  A  by  his  acceptance. 

The  party  making  the  offer  by  letter  is  not  bound  to  use  the  same 
means  for  withdrawing  it  which  he  uses  for  making  it ;  because  any 
withdrawal,  however  made,  terminates  the  offer,  if  only  it  reaches 
the  other  party  before  his  acceptance.  Thus,  if  A  in  the  case  just 
supposed,  a  week  after  he  has  sent  his  offer  by  letter,  telegraphs  a 
withdrawal  to  B,  and  this  withdrawal  reaches  him  before  he  accepts 
the  offer,  this  withdrawal  would  be  effectual.  So  if  he  sent  his  offer 
by  letter  to  England,  in  a  sailing  ship,  and  a  fortnight  after  sent  a 
revocation  in  a  steamer,  or  by  telegraph,  if  this  last  arrives  before 
the  first  arrived  and  was  accepted,  it  would  be  an  effectual  revoca- 
tion. 


EVIDENCE  OF  A  WRITTEN  CONTEACT.  53 

SECTION  V. 

WHAT   EVIDENCE    MAT  BE  RECEIVED    IN  REFERENCE  TO  A  WRITTEN 

CONTRACT. 

IP  an  agreement  upon  which  a  party  relies  be  oral  only,  it  must 
be  proved  by  evidence.  But  if  the  contract  be  reduced  to  writing, 
it  proves  itself ;  and  now  no  evidence  whatever  is  receivable  fbr  the 
purpose  of  varying  the  contract  or  affecting  its  obligations.  The 
reasons  are  obvious*.  The  law  prefers  written  to  oral  evidence,  from 
its  greater  precision  and  certainty,  and  because  it  is  less  open  to 
fraud.  And  where  parties  have  closed  a  negotiation  and  reduced 
the  result  to  writing,  it  is  presumed  that  they  have  written  all  they 
intended  to  agree  to,  and  therefore,  that  what  is  omitted  was  finally 
rejected  by  them. 

But  some  evidence  may  always  be  necessary,  and  therefore  ad- 
missible ;  as,  evidence  of  the  identity  of  the  parties  to  the  contract, 
or  of  the  things  which  form  its  subject-matter.  Quite  often,  neither 
the  court  nor  the  jury  can  know  what  person,  or  what  thing,  or 
what  land,  a  contract  relates  to,  unless  the  parties  agree  in  stating 
this,  or  evidence  shows  it.  The  rule  on  this  subject  is,  that,  while 
no  evidence  is  receivable  to  contradict  or  vary  a  written  contract, 
evidence  may  be  received  to  explain  its  meaning,  and  show  what 
the  contract  is  in  fact. 

There  are  some  obvious  inferences  from  this  rule.  The  first  is, 
that,  as  evidence  is  admissible  only  to  explain  the  contract,  if  the 
contract  needs  no  explanation,  that  is,  if  it  be  by  itself  perfectly 
explicit  and  unambiguous,  evidence  is  inadmissible,  because  it  is 
wholly  unnecessary  unless  it  is  offered  to  vary  the  meaning  and 
force  of  the  contract,  and  that  is  not  permitted.  Another,  follow- 
ing from  this,  is,  that  if  the  evidence  purports,  under  the  name  of 
explanation,  to  give  to  the  contract  a  meaning  which  its  words  do 
not  fairly  bear,  this  is  not  permitted,  because  such  evidence  would 
in  fact  make  a  new  contract. 

A  frequent  use  of  oral  evidence  is  to  explain,  by  means  of  persons 
experienced  in  the  particular  subject  of  the  contract,  the  meaning 
of  technical  or  peculiar  words  and  phrases ;  and  such  witnesses  aro 
called  Experts,  and  are  very  freely  admitted. 


54  AGREEMENT  AND  ASSENT. 

It  may  be  remarked,  too,  that  a  written  receipt  for  money  is  not 
within  the  general  rule  as  to  written  contracts,  being  always  open, 
not  only  to  explanation,  but  even  to  contradiction,  by  extrinsic  evi- 
dence. And  this  is  true  of  the  receipt  part  of  any  instrument.  If 
a  written  instrument  not  only  recites  or  acknowledges  the  receiving 
of  money  or  goods,  but  contains  also  a  contract  or  grant,  such  in- 
strument, as  to  the  contract  or  grant,  is  no  more  to  be  affected 
by  any  evidence  than  if  it  contained  no  receipt ;  but  as  to  the  receipt 
itself,  it  may  be  varied  or  contradicted  in  the-  same  manner  as 
if  the  instrument  contained  nothing  else.  Thus,  if  a  deed  recites 
that  it  was  made  in  "  consideration  of  ten  thousand  dollars,  the 
receipt  whereof  is  hereby  acknowledged,"  the  grantor  may  sue  for 
the  money,  or  any  part  of  it,  and  prove  that  the  amount  was  not 
paid  ;  for  this  affects  only  the  receipt  part  of  the  deed.  But  he  can- 
not say  that  the  grant  of  the  land  was  void  because  he  never  had 
his  money,  nor  that  any  agreement  the  deed  contained  was  void  for 
such  a  reason ;  because,  if  he  proved  that  the  money  was  not  paid 
for  the  purpose  of  thus  annulling  his  grant  or  agreement,  he  would 
be  offering  evidence  to  affect  the  other  part  of  the  deed ;  and  that 
he  cannot  do. 

A  legal  inference  from  a  written  promise  can  no  more  be  rebutted 
by  evidence  than  if  it  were  written.  Thus,  if  A,  by  his  note,  prom- 
ises to  pay  B  a  sum  of  money  in  sixty  days,  he  cannot  when  called 
upon  resist  the  claim  by  proving  that  B,  when  the  note  was  made, 
agreed  to  wait  ninety  days;  and  if  A  promise  in  writing  to  pay 
money,  and  no  time  is  set,  this  is  by  force  of  law  a  promise  to  pay 
on  demand,  and  evidence  is  not  receivable  to  show  that  a  distant 
period  was  agreed  upon. 

Generally  speaking,  all  written  instruments  are  construed  and 
interpreted  by  the  law  according  to  the  simple,  customary,  and 
natural  meaning  of  the  words  used. 

It  should  be  added,  that  when  a  contract  is  so  obscure  or  uncer- 
tain that  it  must  be  set  wholly  aside,  and  regarded  as  no  contract 
whatever,  it  can  have  no  force  or  effect  upon  the  rights  or  obliga- 
tions of  the  parties,  but  all  of  these  are  the  same  as  if  they  had  not 
made  the  contract. 


CUSTOM,  OB  USAGE.  55 

SECTION  VI. 
CUSTOM,   OB    USAGE. 

A  CUSTOM,  or  usage,  which  may  be  regarded  as  appropriate  to  a 
contract,  has  often  great  weight  in  reference  to  it.  This  it  may 
have,  first,  as  to  the  construction  or  meaning  of  its  words ;  and 
next,  as  to  the  intention  or  understanding  of  the  parties. 

The  ground  and  reason  for  this  influence  of  a  custom  is  this.  If 
it  exist  so  widely  and  uniformly  among  such  persons  as  make  the 
contract,  and  for  so  long  a  time,  that  every  one  of  them  must  be 
considered  as  knowing  it,  and  acting  with  reference  to  it,  then  it 
ought  to  have  the  same  force  as  if  both  parties  expressly  adopted  it ; 
because  each  party  has  a  right  to  think  that  the  other  acted  upon  it. 

Sometimes  this  is  carried  very  far.  In  one  English  case,  a  man 
had  agreed  to  leave  in  a  certain  rabbit  warren  ten  thousand  rabbits  ; 
and  the  other  party  was  permitted  to  prove  that,  by  the  usage  of 
that  trade,  a  thousand  meant  one  hundred  dozen,  or  twelve  hundred. 
In  an  American  case,  a  man  agreed  to  pay  a  carpenter  twelve  shil- 
lings a  day  for  every  man  employed  by  him  about  a  certain  building ; 
the  carpenter  was  permitted  to  prove  that,  by  the  usage  of  that 
trade, "  a  day  "  meant  ten  hours'  work ;  and  as  his  men  had  worked 
twelve  and  a  half,  he  was  permitted  to  charge  fifteen  shillings,  or  for 
one  and  one-fourth  days'  work,  for  every  day  so  spent. 

In  these  cases  the  custom  affected  the  meaning  of  the  words. 
But  it  also  has  the  effect  of  words ;  as  if  a  merchant  employed  a 
broker  to  sell  his  ship,  and  nothing  was  said  about  terms,  and  the 
broker  did  something  about  it,  and  the  ship  was  sold,  if  the  broker 
could  prove  a  universal  and  well-established  custom  of  that  place, 
that  for  doing  what  he  did  under  the  employment  he  was  entitled 
to  full  commissions,  he  would  have  them,  as  much  as  if  they  were 
expressly  promised. 

Any  custom  will  be  regarded  by  the  court,  which  comes  within 
the  reason  of  the  rule  that  makes  a  custom  a  part  of  the  contract. 
It  comes  within  the  reason  only  when  it  is  so  far  established,  and  so 
well  known  to  the  parties,  that  it  must  be  supposed  that  their  con- 
tract was  made  with  reference  to  it.  For  this  purpose,  the  custom 


56  AGREEMENT  AND   ASSENT. 

must  be  established  and  not  casual,  uniform  and  not  varying,  gen- 
eral and  not  personal,  and  known  to  all  the  parties.  But  the  degree 
in  which  these  characteristics  must  belong  to  the  custom  will  depend 
in  each  case  upon  its  peculiar  circumstances.  Let  us  suppose  a  con- 
tract for  the  making  of  an  article  which  has  not  been  made  until 
within  a  dozen  years,  and  only  by  a  dozen  persons.  Words  are 
used  in  this  contract  of  which  the  meaning  is  to  be  ascertained ;  and 
it  is  proved  that  these  words  have  been  used  and  understood  in  refer- 
ence to  this  article,  always,  by  all  who  have  ever  made  it,  in  one 
way.  Then  this  custom  will  be  permitted  to  explain  and  interpret 
the  words  of  the  parties.  But  if  the  article  had  been  made  a  hun- 
dred years  or  more,  in  many  countries  and  by  multitudes  of  per- 
sons, the  evidence  of  this  use  of  these  words  by  a  dozen  persons  in 
a  dozen  years  would  not  be  sufficient  to  give  to  this  practice  the 
force  of  custom. 

Other  facts  must  be  considered  ;  as,  how  far  the  meaning  sought 
to  be  put  on  the  words  by  custom  varies  from  their  common  mean- 
ing in  the  dictionary,  or  from  general  use  ;  and  whether  other 
makers  of  the  article  use  these  words  in  various  senses,  or  use  other 
words  to  express  the  alleged  meaning.  Because  the  main  question 
is  always  this :  Can  it  be  said  that  both  parties  must  have  used,  or 
ought  to  have  used,  these  words  in  this  sense,  and  that  each  party 
had  good  reason  to  believe  that  the  other  party  so  used  them  ? 
Thus,  when  the  brief  but  violent  "Moms  multicaulis"  (or  mul- 
berry) speculation  prevailed,  a  few  years  ago,  a  man  made  a  con- 
tract to  sell  and  deliver  a  certain  number  of  the  trees  "  a  foot  high ; " 
and  the  buyer  was  permitted  to  prove  that,  by  the  usage  and  custom 
of  all  who  dealt  in  that  article,  the  length  was  measured  to  the  top 
of  the  ripe  wood  only,  rejecting  the  green  and  immature  top ;  and 
the  "  foot  high  "  was  to  be  so  understood. 

No  custom,  however,  can  be  proved  or  permitted  to  influence  the 
construction  of  a  contract,  or  vary  the  rights  of  the  parties,  if  the 
custom  itself  be  illegal.  For  this  would  be  to  permit,  or  even  oblige, 
parties  to  break  the  law,  because  others  had  broken  it. 

Nor  would  the  courts  sanction  a  custom  which  was  in  itself  unrea- 
sonable and  oppressive.  There  was  a  vessel  cast  ashore  on  the  coast 
of  Virginia,  and  the  master  sold  the  cargo  on  the  spot ;  and  on  trial 


FOEMS  OF  CONTEACTS  OE  AGEEEMENTS.  57 

the  jury  found  that  be  was  authorized  to  do  so  by  the  usage  there ; 
but  the  Supreme  Court  of  Massachusetts,  where  the  ship  and  cargo 
were  insured,  said  that  the  usage  was  unreasonable,  and  they  would 
not  allow  it.  The  Supreme  Court  of  Pennsylvania  in  one  case 
refused  to  allow  a  usage,  as  unreasonable,  by  which  plasterers 
charged  half  the  size  of  the  windows  at  the  price  per  square  yard 
agreed  on  for  the  plastering  of  a  house. 

Lastly,  no  custom,  however  universal,  or  old,  or  known  (unless 
it  has  actually  become  law),  has  any  force  whatever,  if  the  parties 
see  fit  to  exclude  and  refuse  it  by  the  words  of  their  contract,  or 
provide  that  the  thing  which  the  custom  affects  shall  be  done  in  a 
way  different  from  the  custom.  For  a  custom  can  never  be  set  up 
against  either  the  express  agreement  or  the  clear  intentions  of  the 
parties. 

I  will  now  give  forms  for  various  agreements  or  contracts :  — 


FORMS  OF  CONTRACTS  OR  AGREEMENTS. 

Every  agreement  should  be  written,  and  signed  by  both  parties, 
and  witnessed,  where  this  can  be  done  ;  although  the  law  absolutely 
requires  witnesses  in  very  few  cases,  and  in  none  of  mere  contract. 
It  is  prudent,  however,  to  have  them,  for  it  is  a  rule  of  law,  that 
things  which  cannot  be  proved  and  things  which  do  not  exist  are 
the  same  in  the  law. 

Every  thing  agreed  upon  should  be  written  out  distinctly,  and 
care  should  be  taken  to  say  all  that  is  meant,  and  just  what  is  meant, 
and  nothing  else ;  for  it  is  a  rule  of  law,  that  no  oral  testimony  shall 
control  a  written  agreement,  unless  fraud  can  be  proved.  Against 
fraud  nothing  stands. 

(6.) 
1. — A  General  Agreement,  sufficient  for  many  purposes. 

MUTUAL  AGREEMENT  OF  TWO. 

A.  B.  of  (place  of  residence,  and  business  or  profession),  and  C.  D.  of  (as  before"), 
have  agreed  together,  at  (place),  on  (the  day  should  always  be  named),  and  do 
hereby  promise  and  agree  to  and  with  each  other,  as  follows :  A.  B.,  in  considers 


58  AGREEMENT  AND  ASSENT. 

tion  of  the  promises  hereinafter  made  by  C.  D.  (if  there  are  any  such  promises), 
and  of  (here  state  any  other  consideration  which  A.  E.  has),  promises  and  agrees  to 
and  with  C.  D.,  that  (here  set  forth,  as  above  directed,  the  whole  of  what  A.B.  under- 
takes to  do). 

And  C.  D.  in  consideration  (set  forth  consideration  and  promise  as  lefore). 
Witness  our  hands,  to  two  copies  of  this  agreement  interchangeably. 

A.  B. 

Signed  and  Interchanged  in  Presence  of  C.  D. 

E.  F. 
G.  H. 

(7.) 
A  General  Agreement,  as  used  in  the  Western  States. 

Articles  of  Agreement,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  sixty  between 

party  of  the  first  part  and  party  of  the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part  hereby  covenants  end 
agrees,  that  if  the  party  of  the  second  part  shall  first  make  the  payments  and  per- 
form the  covenants  hereinafter  mentioned  on  part  to  be  made  and  per- 
formed, the  said  party  of  the  first  part  will 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees  to  pay  to  said 
party  of  the  first  part  the  sum  of  dollars,  in  the  manner  following : 

dollars  cash  in  hand  paid,  the  receipt  whereof  is  hereby  acknowl- 
edged, and  the  balance 

with  interest  at  the  rate  of  per  centum  per  annum,  payable 

annually.  And  in  case  of  the  failure  of  the  said  party  of  the 

second  part  to  make  either  of  the  payments,  or  perform  any  of  the  covenants  on 
part  hereby  made  and  entered  into,  this  contract  shall,  at  the  option  of  the 
party  of  the  first  part,  be  forfeited  and  determined,  and  the  party  of  the  second 
part  shall  forfeit  all  payments  made  by  on  this  contract,  and  such  payments 

shall  be  retained  by  the  said  party  of  the  first  part  in  full  satisfaction  and  in  liquida- 
tion of  all  damages  by  sustained,  and  shall  have  the  right  to 

It  is  mutually  agreed  that  all  the  covenants  and  agreements  herein  contained 
shall  extend  to  and  be  obligatory  upon  the  heirs,  executors,  administrators  and 
assigns  of  the  respective  parties. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

(Signatures.)     (Seals.) 
Signed,  Sealed  and  Delivered  in  presence  of 


FOEMS  OF  CONTRACTS  OE  AUEEEMENTS.  59 

(8.) 
General  Contract  for  Mechanics9  Work. 

Contract  made  this  day  of  A.D.  18         by  and  between 

of  of  the  first  part,  and  of 

of  the  second  part, 

Witnesseth,  That  the  party  of  the  first  part,  for  the  consideration  hereinafter 
mentioned,  covenants  and  agrees  with  the  party  of  the  second  part  to  perform  in  a 
faithful  and  workmanlike  manner  the  following  specified  work,  viz. : 

And  in  addition  to  the  above  to  become  responsible  for  all  materials  delivered  and 

receipted  for,  the  work  to  be  commenced  and  to  be  completed 

and  delivered  free  from  all  mechanic  or  other  liens,  on  or  before  the 

day  of  And  the  party  of  the  second  part  covenants  and  agrees 

with  the  party  of  the  first  part,  in  consideration  of  the  faithful  performance  of  the 

above  specified  work,  to  pay  to  the  party  of  the  first  part  the  sum  of 

dollars,  as  follows : 

And  it  is  further  mutually  agreed  by  and  between  both  parties,  that  in  case  of 
disagreement  in  reference  to  the  performance  of  said  work,  all  questions  of  dis- 
agreement shall  be  referred  to  and  the  award  of  said  referees,  or  a 
majority  of  them,  shall  be  binding  and  final  on  all  parties. 

In  Witness  VYhereofj  We  hereunto  set  our  hands  and  seals  on  the  day 
and  year  first  above  written. 

(Signatures.)    (Seals.) 
Executed  in  Presence  of 

(9.) 

An  Agreement  for  Purchase  and  Sale  of  Land,  in  Use  in  the 

Middle  States. 

Agreement,  Made  and  concluded  the  day  of  A.D. 

18        by  and  between  of  the  State  of  of  the  first  part, 

and  of  the  State  of  of  the  second  part, 

Whereas,  The  party  of  the  second  part  hath  agreed  to  purchase  from  the 
party  of  the  first  part,  either  on  his  own  account  or  for  whom  it  may  concern, 
certain  land  in  .  Township,  County,  and  State  of 

And  it  is  agreed  that  the  party  of  the  second  part  shall  have  the  right  to  divide  and 
subdivide  said  land  in  such  manner,  and  appropriate  to  his  own  use  so  much  thereof, 
as  he  may  see  fit,  giving  and  paying  to  the  party  of  the  first  part  the  sum  of 


60  AGREEMENT  AND  ASSENT. 

dollars,  on  or  before  the  day  of  A.D.  18       ,  and  reserving  to  his 

own  use  any  amount  for  which  the  whole  or  any  be  sold  over  the  said 

dollars. 

And  these  Articles  further  Witness,  That  the  party  of  the  first  part, 
for  and  in  consideration  of  the  premises  and  the  sum  of 

lawful  money,  to  him  paid  by  the  party  of  the  second  part,  at  and  before  the  execu- 
tion hereof,  doth  covenant,  promise,  grant  and  agree,  with  the  party  of  the  second 
part,  his  heirs  and  assigns,  upon  sale  of  said  lands  being  made  by  the  party  of  the 
first  part,  to  sufficiently  grant,  convey  and  assure  said  lands,  with  the  appur- 
tenances, to  the  said  party  of  the  second  part,  or  such  person  or  persons  as  he  may 
direct ;  and  in  default  of  the  said  party  of  the  second  part  paying  the  amount  here- 
inbefore specified  at  the  time  mentioned,  then  these  articles  are  to  be  deemed  and 
considered  cancelled  to  all  intents  and  purposes,  the  same  as  though  they  never  had 
been  made. 

In  Witness  Whereof,  The  parties  hereto  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  aforesaid. 

(Signatures.)     (Seals.) 
Sealed  and  Delivered  in  Presence  of 

(10.) 
An  Agreement  for  Sale  of  Land ,  in  Use  in  the  Western  States. 

Articles  of  Agreement,  Made  this  day  of  in  the 

year  one  thousand  eight  hundred  and  sixty  between 

of  the  first  part,  and  of  the  second  part, 

Witnesseth,  That  the  party  of  the  first  part,  at  the  request  of  the  party  of 
the  second  part,  and  n  consideration  of  the  money  to  be  paid,  and  the  covenants  as 
herein  expressed  to  de  performed  by  the  party  of  the  second  part  (the  prompt  per- 
formance of  which  payments  and  covenants  being  a  condition  precedent,  and  time 
being  of  the  essence  of  said  condition),  hereby  agree  to  sell  to  the  said  party  of  the 
second  part,  all  certain  lot  and  parcel  of  land,  situate  in 

County  of  and  State  of  ,  known  and  designated  as  follows,  viz. : 

•with  the  privileges  and  appurtenances  thereto  belonging. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  premises,  hereby 
agrees  to  pay  the  party  of  the  first  part,  his  or  their  executors,  administrators  or 
assigns,  in  days, 

the  sum  of  dollars 

as  follows,  viz. : 

with  interest  at  the  rate  of  per  cent  per  annum  from  to 


FORMS  OF  COOTRACTS  OR  AGREEMENTS.  61 

be  paid  semi-annually  in  each  year,  on  the  whole  sum  from  time  to  time  remain- 
ing unpaid.  And  also  that  he  will  well  and  faithfully,  in  due  season,  pay,  or  cause 
to  be  paid,  all  ordinary  taxes  assessed  for  revenue  purposes  upon  said  premises,  or 
any  part  thereof,  subsequent  to  the  year  18  .  And  also  all  other  assessments 
which  now  are,  or  may  be  hereafter,  charged  or  assessed  upon  or  against  said 
premises,  or  any  part  thereof.  But  in  case  the  said  party  of  the  second  part  fail  to 
pay  any  or  all  such  taxes  or  assessments  upon  said  premises  or  appurtenances,  or 
any  part  thereof,  whenever  and  as  soon  as  the  same  shall  become  due  and  payable  ;v 
and  the  party  of  the  first  part  shall  pay  from  time  to  time,  or  at  any  time,  any  or 
all  such  taxes  or  assessments,  or  cause  the  same  to  be  paid ;  the  amount  of  any  and 
all  such  payments  so  made  by  the  party  of  the  first  part,  with  interest  thereon  from 
the  date  of  payment,  shall  immediately  thereupon  become  an  additional  considera- 
tion, and  payment  thereof  shall  be  made  by  the  party  of  the  second  part  hereto,  for 
the  premises  herein  agreed  to  be  conveyed. 

And  the  said  party  of  the  first  part  further  covenants  and  agrees  with  the  said 
party  of  the  second  part,  that  upon  the  faithful  performance  by  said  party  of  the 
second  part  of  undertaking  in  his  behalf,  and  of  the  payment  of  principal 

and  interest  of  the  sum  above  mentioned,  in  the  manner  specified,  he  the  said 
party  of  the  first  part,  shall  and  will,  without  delay,  well  and  faithfully  execute, 
acknowledge,  and  deliver  in  person,  or  by  attorney  duly  authorized,  to  the  party 
of  the  second  part,  heirs  or  assigns,  a  deed  of  conveyance  of  all  the  right, 

title  and  interest  of  the  party  of  the  first  part,  of,  in  and  to  the  above  described 
premises,  with  the  appurtenances,  with  full  covenants  of  warranty,  also  of  waiver 
and  release  of  all  rights  of  the  said  party  of  the  first  part,  resulting  from  the  laws 
of  this  State  pertaining  to  the  exemption  of  homesteads. 

And  it  is  Mutually  Covenanted  and  Agreed,  by  and  between  the 
parties  hereto,  that  in  case  default  shall  be  made  in  the  payments  of  principal  or 
interest  at  the  time  or  any  of  the  times  above  specified,  for  the  payment  thereof, 
and  for  days  thereafter,  this  agreement,  and  all  the  preceding  provisions 

hereof,  shall  be  null  and  void,  and  no  longer  binding,  at  the  option  of  said  party 
of  the  first  part,  representatives  or  assigns ;  and  all  the  payments  which 

shall  then  have  been  made  thereon,  or  in  pursuance  hereof,  absolutely  and  forever 
forfeited  to  the  said  party  of  the  first  part ;  or  at  the  election  of  the  said  party  of 
the  first  part,  representatives  and  assigns,  the  covenants  and  liability  of  said 

party  of  the  second  part  shall  continue  and  remain  obligatory  upon  the  said  party 
of  the  second  part,  and  may  be  enforced,  and  the  said  consideration-money,  and 
every  part  thereof,  with  the  annual  interest  as  above  specified,  be  collected  by 
proper  proceedings  in  law  or  equity,  from  the  said  party  of  the  second  part, 
heirs,  executors,  administrators  or  assigns.  • 

And  it  is  Further  Mutually  Covenanted  and  Agreed,  by  and  be- 
tween the  parties  hereto,  that  in  case  of  default  in  the  payment  stipulated  to  be 
made  by  the  said  party  of  the  second  part,  or  any  part  thereof,  and  the  election 
of  the  party  of  the  first  part,  representatives  or  assigns,  to  consider 


62  AGREEMENT  AND  ASSENT. 

the  foregoing  contract  of  sale  at  an  end,  and  prior  payments  forfeited,  the  said  party 
of  the  second  part,  heirs,  representatives  or  assigns,  who  may  have  posses- 

sion, or  the  right  of  possession,  of  said  premises  at  the  time  of  such  default,  or  at  any 
time  thereafter,  shall  be  considered,  and  are  hereby  agreed  and  declared  to  be,  in 
law  and  equity,  the  tenant  or  tenants  at  will  of  said  party  of  the  first  part, 
representatives  and  assigns,  on  a  rent  equal  to  an  interest  of  ten  per  cent  per  annum 
on  the  whole  sum  of  the  purchase-money  above  specified,  payable  quarter-yearly  in 
advance  from  the  day  of  such  default  in  payment  of  principal  or  interest.  And 
after  such  default  in  payment,  and  election  to  consider  the  above  contract  of  sale  asr 
void,  the  said  party  of  the  first  part,  representatives  and  assigns,  shall  and 

may  have  and  exercise  all  the  powers,  rights  and  remedies  provided  by  law  or 
equity  to  collect  such  rent,  or  to  remove  such  tenant  or  tenants,  the  same  as  if  the 
relation  of  landlord  and  tenant,  hereby  declared,  were  created  by  an  original  abso- 
lute lease,  for  that  purpose,  on  a  special  rent,  payable  quarterly  on  a  tenure  at  will. 
And  that  in  such  case  the  said  tenant  or  tenants  shall  and  will  pay,  or  cause  to  be 
paid,  all  taxes,  assessments,  ordinary  and  extraordinary,  which  may  be  laid  or 
assessed  on  such  premises  or  any  part  thereof,  during  the  continuance  of  such 
tenancy ;  and  will  not  permit  or  suffer  any  waste  or  damage  to  said  premises  or  the 
appurtenances,  but  will  keep  and  deliver  up,  on  the  termination  of  such  tenancy, 
the  said  premises  and  appurtenances,  in  as  good  order  and  repair  (ordinary  wear 
and  decay,  and  unavoidable  injury  by  the  elements,  excepted)  as  they  were  in  at 
the  commencement  of  said  tenancy. 

In  Witness  Whereof,  The  party  of  the  first  part  and 

the  party  of  the  second  part,  in  own  proper  person,  have  hereunto  respec- 

tively set  their  hands  and  seals  on  the  day  and  year  first  above  written. 

(Signatures.')     (Seals.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 


(11.) 
An  Agreement  for  Warranty  Deed  Used  in  the  Western  States. 

Articles  of  Agreement,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  sixty  between 

party  of  the  first  part,  and  party  of  the  second  part, 

Witnesseth :  That  said  party  of  the  first  part  hereby  covenants  and  agrees, 
that  if  the  party  of  the  second  part  shall  first  make  the  payment  and  perform  the 
covenants  hereinafter  mentioned  on  part  to  be  made  and  performed :  the 

said  party  of  the  first  part  will  convey  and  assure  to  the  party  of  the  second  part, 
in  fee  simple,  clear  of  all  incumbrances  whatever,  by  a  good  and  sufficient  warranty 
deed,  the  following  lot,  piece  or  parcel  of  ground,  viz. : 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees  to  pay  to  said 


FOKMS  OF  CONTRACTS  OB  AGREEMENTS.  63 

party  of  the  first  part  the  sum  of  dollars,  in  the  manner  following : 

dollars,  cash  in  hand  paid,  the  receipt  whereof  is  hereby  acknowl- 
edged, and  the  balance 

with  interest  at  the  rate  of  per  centum  per  annum,  payable 

annually,  on  the  whole  sum  remaining  from  time  to  time  unpaid,  and  to  pay  all 
taxes,  assessments  or  impositions  that  may  be  legally  levied  or  imposed  upon  said 
land,  subsequent  to  the  year  18  .  And  in  case  of  the  failure  of  the  said  party 
of  the  second  part  to  make  either  of  the  payments,  or  perform  any  of  the  covenants 
on  part  hereby  made  and  entered  into,  this  contract  shall,  at  the  option  of 

the  party  of  the  first  part,  be  forfeited  and  determined,  and  the  party  of  the  second 
part  shall  forfeit  all  payments  made  by  on  this  contract,  and  such  payments 

shall  be  retained  by  the  said  party  of  the  first  part  in  full  satisfaction  and  in  liquidation 
of  all  damages  by  sustained,  and  shall  have  the  right  to  re-enter 

and  take  possession  of  the  premises  aforesaid. 

It  is  mutually  agreed  that  all  the  covenants  and  agreements  herein  contained 
shall  extend  to  and  be  obligatory  upon  the  heirs,  executors,  administrators  and 
assigns  of  the  respective  parties. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

(Signatures.)     (Seals.') 
Signed,  Sealed  and  Delivered  in  Presence  of 

(12.) 
A  Contract  to  convey  Heal  Estate,  in  Use  in  the  Middle  States, 

This  Article  of  Agreement,  Made  and  entered  into  the 
day  of  one  thousand  eight  hundred  and  between 

of  the  first  part,  and 
of  the  second  part, 

Witnesseth,  as  follows:  The  said  party  of  the  first  part  hereby  agrees  to 
sell  unto  the  said  party  of  the  second  part  all  that  parcel  of  land  situated,  bounded 
and  described  as  follows.  That  is  to  say 

for  the  sum  of 

to  be  paid  by  the  said  party  of  the  second  part,  in  manner  and  at  the  times  herein- 
after mentioned  and  covenanted,  on  the  part  of  the  said  party  of  the  second  part : 
And  the  said  party  of  the  first  part  further  agrees,  that  on  the  day  of 

on  receiving  from  the  said  party  of  the  second  part  the  sum  of 

the  said  party  of  the  first  part  shall  and  will,  at 

at  own  proper  cost  and  expense,  execute  and  deliver  to  the  said  party  of 


64  AGREEMENT  AND  ASSENT. 

the  second  part,  or  to  assigns,  a  proper  deed  of  conveyance,  duly  acknowl- 

ed<*ed,  for  the  conveying  and  assuring  to  them  the  fee  simple  of  the  said 

premises,  free  from  all  incumbrances, 

•which  deed  of  conveyance  shall  contain  a  general  warranty,  and  the  usual  full  cove- 
nants. 

And  the  said  party  of  the  second  part  hereby  agrees  to  pmehase  of  the  said  party 
of  the  first  part  the  premises  above  mentioned,  at  and  for  the  price  and  sum  above 
mentioned,  and  to  pay  to  the  said  party  of  the  first  part  the  purchase-money  there- 
for, in  manner  and  at  the  times  following,  to  wit : 

And  it  is  further  agreed  by  and  between  the  parties  u  these  presents,  that  the 
said  party  of  the  first  part  shall  have  and  retain  the  possession  of  said  premises,  and 
be  entitled  to  the  rents  and  profits  thereof 

until  the  day  of  when  full  possession  of  the  same  shall  be  delivered 

to  the  said  party  of  the  second  part,  by  the  said  party  of  the  first  part : 

And  it  is  understood  and  agreed,  that  the  stipulations  aforesaid  are  to  apply  to 
and  bind  the  heirs,  executors,  administrators  and  assigns  of  the  respective  parties. 

And  it  is  further  hereby  agreed,  that  in  case  the  said  party  of  the  first  part  shall 
fail  or  refuse  to  execute  and  deliver  a  proper  deed  of  conveyance  in  manner  and  at 
the  time  and  place  above  specified  for  that  purpose,  provided  the  party  of  the 
second  part  shall  be  ready  to  fulfil  and  perform  the  covenants  then  to  be  fulfilled 
on  part ;  or  in  case  the  said  party  of  the  second  part  shall  fail  or  refuse  to 

pay  the  said  sum  of 

at  the  time  and  place  as  above  agreed  upon,  provided  the  party  of  the  first  part 
shall  be  ready  to  deliver  such  deed  of  conveyance,  as  aforesaid  ;  then  the  party  so 
failing  shall  and  will  pay  to  the  other  party,  or  assigns,  the  sum  of 

dollars,  which  sum  is  hereby  declared  fixed  and  agreed  upon,  as  the  liquidated 
amount  of  damages  to  be  paid  by  the  party  so  failing  as  aforesaid,  for 
non-performance. 

(Signatures.)     (Seals.) 
Signed,  Sealed  and  Delivered  in  Presence  of 


(13.) 

An  Agreement  for  the  Purchase  of  an  Estate,  in  Use  in  Neiv 

England. 

Articles  of  Agreement,   Had,  made,  concluded,  and  agreed  upon  this 
day  of  A.D.       '          between  of  of  the  one 

part,  and  of  of  the  other  part.     First,  the  said      (seller)  in  considera- 

tion of  the  sum  of,  to  him  paid  by  the  said      (buyer)  at  or  before  the  sealing 

and  delivery  of  these  presents,  and  of  the  further  sum  of  to  be  paid  as 

Hereinafter  is  mentioned,  doth  hereby  for  himself,  his  heirs,  executors,  and  admin- 


OF  CONTRACTS  OE  AGREEMENTS.          65 

istrators,  and  every  of  them,  covenant,  promise,  and  agree,  to  and  -with  the  said 

his  heirs,  executors,  and  administrators,  and  every  of  them,  by  these 

presents,  that  he  the  said  his  heirs  and  assigns  (and  all  and  every  other 

person  and  persons  whatsoever,  claiming  or  to  claim  any  right,  title,  or  interest 

under  him,  or  any  other  person  or  persons    whatsoever,  of,  in,  or  to  the  lands 

and  premises  hereinafter  mentioned)  shall  and  will,  at 

the  proper  costs  and  charges  of  the  said  his  heirs  and 

assigns  (except  fees  to  counsel),  on  or  before  the  day  of 

next  ensuing,  by  such  conveyances,  assurances,  ways  and  means  in  the  law,  as  he 
the  said  his  heirs  and  assigns,  or  his  or  their  coun- 

sel, shall  reasonably  devise,  advise,  or  require,  well  and  sufficiently  grant,  sell, 
release,  convey,  and  assure  to  the  said  and  his  heirs,  or  to  whom  he  or 

they  shall  appoint  or  direct,  all  that  situate  now  in  the  tenure  or 

occupation  of  or  his  assigns,  with  covenants  to  be  therein  contained,  that 

the  said  premises,  at  the  time  of  such  conveyance,  are  free  from  all  incumbrances 
and  demands  whatsoever  (except  )  and  all  other  usual  and  reasonable  cove- 

nants.    In  consideration  whereof,  the  said  for  himself,  his  heirs,  executors, 

administrators,  and  assigns,  doth  hereby  covenant,  promise,  and  agree,  to  and  with 
the  said  his  heirs,  executors,  and  administrators,  by  these  presents,  that  he 

the  said  his  heirs,  executors,  or  administrators,  or  some  of  them,  shall  and 

will,  well  and  truly,  pay,  or  cause  to  be  paid,   unto  the  said  his  heirs, 

executors,  or  administrators,  the  aforesaid  sum  of  at  the  time  of  executing 

the  said  conveyances.  And  for  the  true  performance  of  all  and  every  the  cove- 
nants and  agreements  aforesaid,  each  of  the  said  parties  to  these  presents  doth 
hereby  bind  himself,  his  heirs,  executors,  and  administrators  to  the  other  of  them, 
his  heirs,  executors,  administrators,  and  assigns  in  the  penal  sum  of 

In  "Witness  Whereof,  The  said  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

(Signatures.)     (Seals.) 
Signed,  Sealed  and  Delivered  in  Presence  of 

An  agreement  for  the  sale  of  lands  should  always  state  the  cove- 
nants, whether  of  general  or  special  warranty,  which  it  is  intended 
that  the  contemplated  conveyance  shall  contain. 


COVENANTS,  PROVISOS,  AND  AGREEMENTS,  WHICH   MAY  BE   INSERTED 
IN  THE  PRECEDING  FORM. 

1.  Covenant  that  the  vendor,  before  the  purchase  is  completed,  shall  not  commit 
waste,  or  grant  any  new  leases, 

And  also  that  the  said  (the  seller)  shall  not  nor  will,  in  the  mean  time, 

cut  down  any  timber  or  trees,  or  commit  any  waste  or  spoil  whatsoever,  in  or 
upon  the  premises,  or  any  part  thereof,  nor  shall  or  will  grant  any  new  leases  of  th« 


66  AGREEMENT  AND  ASSENT. 

premises,  or  any  part  thereof,  -without  the  privity  or  consent  of  the  said  (the 

buyer)  or  his  heirs  or  assigns. 

IS.  Another  covenant  for  the  payment  of  the  purchase-money. 

And  the  said  (the  buyer)  doth  hereby  covenant  and  agree  to  and-with  the  said 
(the  seller)  his  heirs,  executors,  and  administrators,  that  upon  sealing  and  execut- 
ing such  conveyance  and  assurance  of  the  said  unto  him  and  them  as  aforesaid, 
according  to  the  true  intent  of  these  presents,  he  the  said  his  heira,  execu- 
tors, or  administrators,  shall  and  will  pay,  or  cause  to  be  paid,  unto  the  said 
his  heirs,  executors,  or  administrators,  the  said  sum  of  in  foil  for  the 
purchase  of  the  said  premises.  (Or  there  may  be  an  agreement  to  retain  part  of  the 
purchase-money  to  pay  off  an  incumbrance,  as  follows: 

And  it  is  agreed  between  the  said  parties  that  the  said  sliAll  or  may 

retain  out  of  the  said  purchase-money  the  sum  of  for  the  purpose  of  paying 

off  the  sum  of  secured  by  a  mortgage  on  the  said  premises,  given  by  the 

said  to  bearing  date  when  the  said  sum  shall  become  due 

by  virtue  of  the  said  mortgage. 

.8.  This  agreement  may  be  inserted. 

And  it  is  agreed,  that  if  the  counsel  of  the  said  shall  not  approve  of  the 

title  of  the  said  to  the  said  premises,  this  agreement  shall  be  void. 

4.  This  proviso  may  be  inserted. 

Provided  always,  and  it  is  hereby  mutually  covenanted  and  agreed,  by  and 
between  the  parties  to  these  presents,  for  themselves  and  their  respective  heirs,  in 
manner  as  follows,  viz.  That  in  case  the  counsel  of  the  said  (the  buyer)  shall  not 
approve  of  the  title  of  him  the  said  (the  setter)  to  the  said  or  in  case  (the 
buyer)  on  his  view  thereof  (he  not  having  ever  viewed  the  same)  will  not  proceed  in 
the  purchase  thereof,  and  shall  and  do,  within  one  month  next  after  the  date  hereof, 
give  notice,  in  writing,  to  the  said  (or  to  of  )  that  he  will  not 

purchase  the  said  then  and  in  either  of  the  cases,  these  presents  shall  be 

absolutely  void ;  and  that  then  he  the  said  (the  seller)  his  heirs,  executors,  or 

administrators,  shall  and  will,  within  six  months  now  next  ensuing,  well  and  truly, 
repay  or  cause  to  be  repaid  unto  the  said  (the  buyer)  his  heirs,  executors, 

administrators,  or  assigns,  the  said  sum  of  so  by  him  now  paid  as  aforesaid, 

together  with  legal  interest  for  the  same,  from  henceforth  to  be  computed  until  pay- 
ment thereof. 

5.  A.  provision  in  articles  of  purchase,  in  case  of  the  delay  or  default  of  cither 
party. 

that  if  by  reason  of  any  delay,  neglect  or  default,  by  or  on  the  part  of 

the  said  (the  purchaser)  or  his  heirs,  or  his  or  their  counsel  or  agents,  the 

said  conveyances  of  the  said  estates  and  premises  shall  not  be  ready  and  tendered 

to  the  said  (the  vendor)  or  his  heirs,  to  be  executed,  on  or  before  the  said 

day  of  then  and  m  such  case,  the  said  his  shall 


FOEMS  OF  CONTRACTS  OB  AGREEMENTS.  67 

and  will  pay  and  allow  to  the  said  his  interest  for  the  said  sum  of 

at  the  rate  of  to  be  computed  from  the  day  of 

until  the  said  (the  principal  sum)  shall  be  paid  as  aforesaid ;  but  if,  by 

reason  of  any  delay,  neglect  or  default,  by  or  on  the  part  of  the  said  or  any 

claiming  under  him,  such  conveyances  as  aforesaid  shall  not  be  executed  on  or  before 
the  said  day  of  then  and  in  such  case,  no  such  interest  as  aforesaid 

shall  be  paid  or  allowed  during  the  time  of  such  delay  of  the  said 

6.  An  agreement  that  if  a  good  title,  &c.,  cannot  be  made  on,  &c.,  the  premiset 
shall  stand  as  security  for  the  money  paid  down,  &c. 

It  is  hereby  further  agreed  and  declared  by  and  between  all  the  said  parties  to 
these  presents,  and  particularly  the  said  (the  vendors)  do  hereby  agree  and  declare, 
that  in  case  they  cannot  make  out  a  good  title  to,  and  execute  and  perfect  such  con- 
veyances and  assurances  of  the  premises  as  aforesaid,  on  or  before  the  day 
of  now  next  ensuing,  then  the  said  and  every  part  thereof,  shall 
remain  and  be  a  security  to  the  said  (the  purchaser)  for  securing  to  him, 
his  the  repayment  of  the  said  sum  of  now  by  him  paid  as  aforesaid, 
at  or  upon  the  said  day  of  now  next  ensuing,  together  with  interest 
for  the  same  after  the  rate  of  from  henceforth  in  the  mean  time  and  until 
payment  thereof,  which  interest  in  such  case  they  the  said  (the  purchasers) 
do  hereby  for  themselves,  severally  acd  respectively,  and  for  their  several  and 
respective  heirs,  promise  and  agree  to  pay  accordingly,  and  then,  also,  in 
such  case  all  such  rents,  as  he  the  said  (the  purchaser)  shall  have 
received,  by  or  out  of  the  premises  as  aforesaid,  shall  be  deemed  and  allowed  by 
him  in  part  of  payment  of  the  same  (the  principal  purchase-money)  and 
interest. 

7.  That  if  the  other  parties  do  not  perform  their  covenants,  the  purchaser  shall 
not  be  obliged  to  perform  his, 

And  it  is  mutually  agreed  and  declared  to  be  the  true  intent  and  meaning  of 
these  presents,  that  if  it  shall  happen  that  any  of  them  the  said  their  heirs, 

shall  neglect  to  perform  his  or  their  parts  of  the  covenants  and  agreements 
herein  contained,  that  then,  and  in  any  such  case,  the  said  his  heirs,  execu- 

tors, and  administrators,  or  any  of  them,  shall  not  be  hereby  obliged  to  perform  his 
and  their  covenants  herein  contained,  or  any  of  them,  but  shall,  if  he  shall  think  fit, 
be  absolutely  discharged  from  the  same. 


(14.) 
Agreement  for  the  Sale  of  an  Estate  by  Private  Contract. 

Articles  of  Agreement,  Made  this  day  of 

between                              o£,                           and  of 

The  said               agrees  to  sell  the  said               all  that  with  the  appur- 
tenances, for  the  sum  of               and  will,  on  or  before  the  day  of 


68  AGREEMENT  AND  ASSENT. 

next,  on  the  receipt  of  the  said  sum  of  at  the  charges  of  the  said 

execute  a  proper  conveyance  thereof,  with  a  covenant  of  general  warranty  and 

against  incumbrances,  to  the  said  and  his  heirs  and  assigns. 

And  the  said  agrees,  that,  on  the  execution  of  such  conveyance,  he  will 

pay  the  said  sum  of  to  the  said  or  his  assigns. 

And  it  is  further  agreed,  that  the  conveyance  shall  be  prepared  by  and  at  the 
expense  of  the  said  to  the  approbation  of  the  respective  counsel  of  the 

said  and  and  that  all  taxes  and  outgoings  in  respect  of 

the  premises  in  the  mean  time  shall  be  paid  by  the  said  .     And  it  is 

agreed,  that  the  said  shall  receive  the  rents  and  profits  of  the  premises, 

from  next,  to  his  proper  use.     And  it  is  agreed,  that  if  the  said  convey- 

ance shall  not  be  executed,  and  the  purchase-money  paid  on  or  before  the 
day  of  then  the  said  shall  pay  interest  for  the  same  from 

the  same  day,  unto  the  said  after  the  rate  of  per  cent  per 

annum, 

In  Witness  Whereof, 

(Signatures.)     (Seals.) 

(15.) 

An  Agreement  to  be  signed  by  an  Auctioneer,  after  a  Sale  by 

Auction. 

I  Hereby  Acknowledge,  That  has  been  this  day  declared 

the  highest  bidder  and  purchaser  of  (describe  the  real  estate}  at  the  sum  of 

;  and  that  he  has  paid  into  my  hands  the  sum  of  as  a  de- 

posit, and  in  part  payment  of  the  purchase-money ;  and   I  hereby  agree  that  the 
vendor  shall  in  all  respects  fulfil  the  conditions  of  sale.* 

Witness  my  hand, 

(Signatures.)     (Seals.) 

(16.) 

An  Agreement  to  be  signed  by  the  Purchaser,  after  a  Sale  by 

Auction. 

I  Hereby  Acknowledge,  That  I  have  this  day  purchased  by  public  auc- 
tion all  that  (describe  the  estate)  for  the  sum  of  ;  and  have  paid 
into  the  hands  of  the  sum  of  as  a  deposit  and  hi  part 
payment  of  the  said  purchase-money ;  and  I  hereby  agree  to  pay  the  remaining 
sum  of  unto  (the  vendor)  at  on  or  before 
the  day  of  ;  and  La  all  other  respects,  on  my  part,  to  fulfil 
the  annexed  conditions  of  sale. 

Witness  my  hand  this  day  of 

(Signatures.)     (Seals.) 

*  It  would  be  well  to  have  the  conditions  of  sale  annexed,  and  refer  to  them  by  saying  hereunto 
annexed. 


FOEMS  OF  CONTRACTS  OB  AGREEMENTS.  69 

(17.) 
An  Agreement  to  make  an  Assignment  of  a  Lease. 

Whereas,  (the  lessor)  hath  by  his  deed  indented,  dated,  , 

demised  unto  the  said  (the  lessee)  all  that  to  have  and  to 

hold  to  him  the  said  his  (reciting  the  lease)  as  by  the 

said  deed  indented  more  fully  appears :    Now  the  said  for  and  in 

consideration  of  dollars  doth  hereby  for  himself,     (his  Tieirs,  fyc.)  covenant, 

that  he  the  said  before  the  day  of 

shall  and  will,  at  the  costs  and  charges  of  (the  assignee), 

his     (heirs,  §"c.)  by  deed  indented,  assure,  assign,  and  grant  over  to  the  said 

his       (his  heirs,  §•£.)  the  said      (the  premises)  and  all  his  estate,  right, 
title,  and  demand  therein  :  To  have  and  to  hold  to  the  said  (the  assignee)  his 

(heirs,  fyc.)  during  the  residue  of  the  said  term  of  years,  then  to  come,  of,  in,  and 
to  the  same,  by  virtue  of  the  said  recited  indenture,  and  under  the  rents,  cove- 
nants, and  agreements  therein  specified. 

(Signatures.)     (Seals.) 

(18.) 
An  Agreement  for  making  a  Quantity  of  Manufactured  Articles. 

Articles  of  Agreement  between  (the  buyer)  of  the 

one  part,  and  of  the  other  part. 

The  said  (the  manufacturer)  for  the  consideration  hereinafter 

mentioned  doth  covenant  that  he  will,  at  his  own  charge,  make  for  the  said 

(describe  the  articles  to  be  made) 

of  the  same  quality  of  materials  and  goodness,  as,  and  in  all  other  respects  accord- 
ing to  a  pattern  agreed  between  the  said  parties,  ,  and  deliver 
the  same  to  the  said                                at                                 within 
months  from  the  date  hereof.      And  the  said                                  in  consideration 
thereof,  doth  covenant  to  pay  to  the  said                              at  the  rate  of 
after                       months  from  the  delivery  of  the  said   .  as  aforesaid. 
And  it  is  agreed,  that  if  any  of  the  said                             shall  not  be  made  agreea- 
ble to  the  said  pattern,  and  for  that  reason  shall  be  rejected  by  the  said 

he  the  said  shall  take  back  such  as  shall  so  be  refused, 

and  deliver  the  said  the  like  quantity  of  the  goodness  and  make, 

according  to  the  pattern  aforesaid. 

In  "Witness 

(Signatures.)     (Seals.) 


70  AGREEMENT  AND  ASSENT. 

(19.) 
Agreement  between  a  Trader  and  a  Book-keeper. 

Articles  of  Agreement  between  (the  trader)  of 

and  (the  book-keeper)  of  .    The  said  agrees  that  he 

will,  during  the  term  of  years  from  the  date  hereof,  dwell  with  the  said 

and  faithfully  keep  the  books  of  accounts  of  the  said  , 

and  diligently  serve  the  said  in  such  other  business  as  the  said 

shall  direct,  and  shall  therein  perform  the  reasonable  directions 
of  the  said  without  disclosing  the  same,  or  any  of  his  correspondence, 

or  the  secrets  of  his  employment  or  business  to  any  person  whatsoever ;  and  shall 
not  correspond  with  any  person  corresponding  with  the  said  ,  nor 

use  any  traffic  or  dealing  for  himself,  or  any  other  person,  without  the  consent  of 
the  said  in  writing.     And  the  said  further  covenants, 

that  he  will,  during  the  said  term,  keep  true  and  perfect  accounts  for  the  said 
,  and  will  not  embezzle,  waste  or  destroy  any  of  the  goods,  moneys, 
or  effects  of  the  said  or  any  of  his  correspondents  ;  and  also  that 

he  the  said  will,  from  time  to  tune,  during  the  said  term,  upon  request, 

make  and  give  unto  the  said  his  a  just  and  perfect 

account  hi  writing  of  all  money,  which  he  the  said  shall  receive  and 

pay  out,  and  of  all  goods  and  commodities,  which  he  shall,  at  any  tune  during  the 
said  term,  receive  in  or  deliver  out  upon  the  account  of  the  said  ,  or 

any  of  his  correspondents,  or  by  the  order  of  the  said  .    And  also, 

that  he  the  said  his  will  pay  to  the  said  , 

his  all  such  sums  of  money  as  shall  be  due  upon  the  foot  of  every  such 

account.     And  also  that  he  the  said  will  not  deliver  forth  upon  credit 

any  of  the  goods,  merchandise  or  moneys,  of  the  said  or  any  of  his 

correspondents,  to  any  person  or  persons  whatsoever,  without  the  express  consent 
of  the  said 

And  the  said  (the  trader)  for  himself  (and  his  heirs,  fyc.)  covenants 

that  he  will  pay  to  the  said  (the  book-keeper)  in  consideration  of  the  said 

services,  the  yearly  sum  of  in  equal  payments  on  the  days  follow- 

ing, viz.,  on  and  will,  during  the  said  term,  provide  for  the  said 

sufficient  and  suitable  meat,  drink,  washing  and  lodging. 

In  Witness 

(Signatures.)     (Seals.) 

(20.) 
Agreement  for  Damages  in  laying  out  or  altering  Road. 

Whereas,  A  road  was  laid  out  on  the  day  of  A.D.  186    , 

by  and  Commissioners  of  Highways  of  the  Town 

of  in  the  County  of  and  State  of  on  the  application  of  the 


FORMS  OF  COOTRACTS  OR  AGREEMENTS.  71 

requisite  number  of  legal  voters  residing  within  three  miles  of  said  road,  as  follows : 
commencing 

which  road  passes  through  the  land  of  being  known  and  described 

as  follows,  viz. : 

Now,  therefore,  it  is  hereby  agreed  between  the  said  Commissioners  and  the  said 
that  the  damages  sustained  by  the  said  by  reason  of  the  laying 

out  and  opening  said  road  upon  his  land,  hereinbefore  described,  be  liquidated  and 
agreed  upon  at  dollars. 

In  Witness  Whereof,  The  said  Commissioners  and  the  said 
have  hereunto  subscribed  their  names  this  day  of  A.D.  186     . 

(Signatures.)  Commissioners  of  Highways. 


(21.) 

An  Agreement  betiveen  a  Person  wJio  is  Retiring  from  the  Active 
Part  of  a  Business,  and  another  who  is  to  conduct  the  same  for 
their  Mutual  Benefit. 

Articles  of  Agreement  Made,  entered  into,  and  concluded  upon,  this 

day  of  A.D.  ,  between 

of  of  the  one  part,  and  of  of  the 

other  part :  Whereas  the  said  hath  conducted  and  managed  for 

some  time  past  the  trade  or  business  of  the  said  ,  and  in  consid- 

eration of  the  attention  and  assiduity  of  the  said  thereunto,  the 

said  is  willing  to  continue  the  said  in  the  man- 

agement thereof  under  the  covenants,  restrictions,  and  agreements  hereinafter 
contained ;  and  in  consequence  thereof,  an  inventory  and  appraisement  hath  been 
made  and  taken  of  the  stock,  and  entered  in  two  receipt-books,  one  of  which  is  to 
remain  in  the  custody  of  each  of  them,  the  said  parties  to  these  presents,  and  is 
subscribed  by  both  of  them,  and  the  value  of  the  said  stock  in  the  whole,  appear? 
to  the  amount  of  the  sum  of  :  Now  these  presents  witness,  that 

for  and  in  consideration  of  the  covenants  and  agreements  hereinafter  contained  on 
the  part  of  the  said  to  be  performed,  the  said 

for  himself,  his  executors,  and  administrators,  doth  hereby  covenant,  promise,  and 
agree,  to  and  with  the  said  ,  that  it  shall  and  may  be  lawful  to  and 

for  the  said  from  time  to  time,  during  the  term  of  eleven  years,  to 

be  computed  from  the  day  of  the  date  of  these  presents,  if  they  the  said 
and  shall  jointly  so  long  live,  to  trade  with  the  said  stock,  and  to 

manage  and  improve  the  same,  in  such  manner  as  to  the  said 
under  the  direction  of  the  said  ,  shall  seem  meet,  upon  trust  never- 

theless, and  to  the  intent  and  purpose  that  the  said  shall  and  do, 


72  AGKEEMENT  AND  ASSENT. 

by  and  out  of  the  m:mey  which  shall  arise  by  sale  of  any  part  or  parts  of  the  said 
stock,  buy  such  goods  as  shall  be  requisite  to  keep  up  and  continue  the  present 
quality  and  value  thereof,  and  by  and  out  of  the  profits  which  shall  arise  from  the 
trade  and  dealing,  in  the  first  place  yearly  and  every  year,  pay  the  whole  rent  of 
the  said  house  and  shop,  and  pay  and  discharge  all  taxes  which  now  are,  or  shall 
hereafter  be,  assessed  or  imposed  on  him  the  said  or  the  said 

on  account  of  the  said  house  and  trade,  and  in  the  next  place  to 
pay  to  him  the  said  or  his  assigns,  yearly  and  every  year  during 

the  said  term  of  eleven  years,  if  they  the  said  and 

shall  so  long  live,  one  clear  annuity  or  yearly  sum  of  by  equal 

half-yearly  payments,  on  the  day  of  and  the 

day  of  without  any  deduction  or  abatement  whatsoever,  and  subject 

thereto,  to  retain  the  residue  and  overplus  of  the  profits  which  shall  arise  from  his 
trade  and  dealing,  to  and  for  his  own  sole  use  and  benefit,  as  a  recompense  and 
satisfaction  for  his  care  and  trouble  hi  the  sale  and  management  of  the  said  stock. 
And  the  said  in  consideration  of  the  premises,  and  of  the  cove- 

nant and  agreement  hereinbefore  on  the  part  of  the  said  con- 

tained, doth  for  himself,  his  executors,  and  administrators,  covenant,  declare,  and 
agree,  that  he  the  said  shall  and  will  from  tune  to  time,  and  at  all 

times,  for  and  during  the  said  term  of  eleven  years,  if  they  the  said 
and  shall  so  long  jointly  live,  diligently  apply  himself  to  the  care 

and  management  of  the  said  stock,  trade,  and  business,  according  to  his  best  skill, 
abilities,  and  discretion,  and  apply  and  dispose  of  the  money  which  shall  arise  from 
the  sale  thereof,  and  all  the  profits  of  his  trade  and  dealings,  to  answer  and  dis- 
charge the  trusts  hereby  reposed  in  him,  in  such  manner  as  hereinbefore  is  directed, 
declared,  or  expressed.  And  also  shall  and  will  write  true  and  perfect  entries,  in 
proper  books  of  accounts,  of  all  such  goods  as  shall  be  sold,  and  of  all  moneys 
which  shall  be  paid  and  received  by  him,  and  permit  the  same,  from  time  to  time, 
to  be  inspected  by  him  the  said  or  such  other  person  or  persons  as 

he  shall  appoint.     And  further,  that  he  the  said  shall  not  nor  will, 

at  any  tune  during  the  continuance  of  the  said  term  of  eleven  years,  buy  or  sell,  or 
in  any  wise  trade  or  deal  in  his  own  name,  but  in  the  name  only  of  him  the  said 
upon  the  trusts  aforesaid ;  nor  do  any  act  whatsoever,  whereby 
the  said  stock,  or  any  part  thereof,  may  be  attached,  or  taken  in  execution.  And 
also  that  at  Christmas  next,  and  so  at  every  succeeding  Christmas  during  the  said 
term  of  eleven  years,  or  oflener,  if  thereto  required  by  the  said  , 

he  the  said  shall  and  will  take  a  full  account  in  writing  of  the  said 

stock,  then  remaining  in  the  said  trade,  and  of  the  profits  thereof,  and  deliver  the 
same  to  the  said  in  order  to  manifest  to  him  a  true  state  thereof,  and 

of  his  proceedings  in  the  trade  by  him  earned  on  therewith.    And  at  the  expira- 
tion, or  other  sooner  determination,  of  the  said  term  of  eleven  years,  he  the  said 
,  his  executors  or  administrators,  shall  and  will  deliver 

up  to  him  the  said  ,  his  executors  or  administrators,  tha 

stock  then  remaining  for  his  or  their  own  use  and  benefit,  to  the  value  of  th« 


FORMS  OF  CONTRACTS   OK  AGREEMENTS.  73 

sum  of  losses  by  bad  debts,  decay  of  goods,  and  other  inevitable 

casualties  excepted. 

Witness  our  hands  and  seals,  this  day  of 

in  the  year  18      . 

(Signatures,')     (Seals.) 

T         T*  *  \        */  S  \  S 

In  Presence  of 

(22.) 
A  Brief  Building  Contract. 

Contract  for  building  made  this  day  of  one  thousand  eight 

hundred  and  by  and  between  of  in  the  County 

of  and  of  in  the  County  of  Builder    . 

The  said  covenant    and  agrees  to  and  with  the  said  to  make, 

erect,  build,  and  finish,  in  a  good  substantial  and  workmanlike  manner, 
upon  situate  said  to  be  built  agreeable  to  the 

draught,  plans,  explanations  or  specifications,  furnished  or  to  be  furnished  to  said 
by  of  good  and  substantial  materials  ;  and  to  be  finished  complete 

on  or  before  the  day  of  And  said  covenant    and  agrees 

to  pay  to  said  for  the  same  dollars,  as  follows : 

Security  against  mechanics,  or  other  lien,  is  to  be  furnished  by  said  prior 

to  payment  by  said 

And  for  the  performance  of  all  and  every  the  articles  and  agreements  above 
mentioned,  the  said  and  do  hereby  bind  themselves,  their  heirs, 

executors  and  administrators,  each  to  the  other,  in  the  penal  sum  of  dollars, 

firmly  by  these  presents. 

In  "Witness  "Whereof,  We,  the  said  and  have  hereunto 

set  our  hands  the  day  and  year  first  above  written. 

(Signatures.)     (Seals.) 
Executed  and  Delivered  in  Presence  of 

Contracts  for  building  are  among  those  most  frequently  made, 
and  also  among  those  which  require  the  utmost  care.  A  specifica- 
tion stating  and  describing  all  the  things  which  the  parties  desire 
and  intend  to  have  done  should  always  accompany  the  contract ;  and 
it  is  very  difficult  for  persons  not  accustomed  to  the  work  to  remem- 
ber and  specify,  and  properly  describe,  all  the  things  they  propose 
to  have  in  the  building ;  and  all  these  things  should  be  accurately 
and  precisely  stated  in  the  specification.  From  omissions  or  errors 
of  this  kind,  cases  and  questions  are  constantly  arising.  To  assist 
those  who  have  to  prepare  for  themselves  or  others  a  contract  of  this 


74  AGKEEMENT  AND  ASSENT. 

sort,  I  have  given,  first,  a  brief  and  simple  form ;  I  now  give  a  very 
full  and  minute  form,  prepared  by  a  skilful  lawyer,  and  in  wide 
use ;  and  then  a  full  and  minute  specification  for  building  a  block 
of  houses,  prepared  by  a  very  eminent  architect. 


(23.) 
A  Full  and  Minute  Building  Contract. 

ATI  Agreement,  of  two  parts,  made  this  day  of  in  the  year 

one  thousand  eight  hundred  and  sixty-  by  and  between 

part    of  the  first  part  and 

part    of  the  second  part. 

The  said  part    of  the  first  part,  in  consideration  of  the  sum  of  money  to  be  paid 
by  the  said  part    of  the  second  part,  as  hereinafter  mentioned,  and  the  covenants 
and  agreements  hereinafter  recited,  to  be  kept  and  performed  by  the  said  part 
of  the  second  part,  do  for  sel  and  Covenant, 

Promise,  and  Agree,  to  and  with  the  said  part    of  the  second  part, 
that  the  said  part     of  the  first  part,  shall  and  will,  in  a  good  and 

workmanlike  manner,  and  according  to  the  best  of  art  and  ability,  do  and 

perform  the  following  work,  and  provide  materials  for  the  same, 

that  is  to  say : 

The  whole  of  said  work  is  to  be  performed,  and  all  the  said  materials  furnished, 
in  conformity  with  the  plans  and  specifications  of  the  same,  as  made  by 

the  ARCHITECT      hereby  appointed 

by  said  part  of  the  second  part,  which  plans  and  specifications  bear  even  date 
herewith,  and  are  signed  by  the  parties  hereto,  and  under  the  superintendence  and 
direction  of  hereby  appointed  SUPERINTENDENT  and  AGENT  of  the  said 

part  of  the  second  part,  which  plans  and  specifications  are  to  be  considered  as 
forming  a  part  of  this  agreement,  as  if  herein  fully  written  and  drawn. 

The  said  part  of  the  first  part  further  agree  that  the  work  aforesaid  shall 
be  commenced  and  be  constantly  prosecuted,  and  the  materials  aforesaid  promptly 
furnished  and  that  all  said  work  shall  be  completed  on  or  before 

the  day  of  in  the  year  one  thousand  eight  hundred  and  sixty- 

and,  furthermore,  that  no  charge  of  any  kind  shall  be  made  by  the  said  part 
of  the  first  part  to  the  said  part        of  the  second  part,  beyond  the  sum  of 
dollars,  unless  the  said  part        of  the  second  part,  and  the  said  Superintendents, 
shall  alter  the  aforesaid  plans  and  specifications,  in  which  case  the  value  of  such 
alterations  shall  be  added  to  the  amount  to  be  paid  under  this  contract,  or  deducted 
therefrom,  as  the  case  may  require :  it  being  expressly  understood  that  no  extra 
work  of  any  kind  shall  be  performed,  or  extra  materials  furnished,  by  the  said  part 


FORMS  OF  CONTRACTS  OR  AGREEMENTS.  75 

of  the  first  part,  unless  first  authorized  by  the  said  part  of  the  second  part,  and 
the  said  Superintendents,  in  writing ;  and  that  the  said  part  of  the  second  part, 
and  the  said  Superintendents  may,  from  time  to  time,  make  any  alterations  of,  to, 
and  in  the  said  plans  and  specifications,  upon  the  terms  aforesaid. 

The  said  part  of  the  first  part,  for  sel  and  legal  representatives, 
further  promise  and  agree  that  insurance  shall  be  effected  upon  the  building 
as  soon  as  the  roof  is  put  on  and  covered  ;  the  amount  of  said  insurance  to  be  for 
such  sum  as  the  said  part  of  the  second  part,  and  the  said  Superintendents  shall 
direct,  to  be  further  increased,  from  time  to  time,  at  the  direction  of  the  said  party 
of  the  second  part,  and  the  said  Superintendents ;  the  policy  to  be  in  the  name  and 
for  the  benefit  of  said  part  of  the  second  part,  or  legal  representatives,  and 
to  be  made  payable,  in  case  of  loss,  to  for  •whom  it  may  concern  :  —  each 

party  to  this  agreement  hereby  agreeing  to  pay  one-half  the  cost  of  such  insurance. 

The  said  part  of  the  second  part,  for  sel  and  legal  representatives, 
in  consideration  of  the  materials  being  provided  and  the  labor  done  as  herein 
required,  and  all  other  of  the  stipulations,  requirements,  matters  and  things  herein 
set  forth,  being  kept  and  performed  by  said  part  of  the  first  part,  Covenant, 
Promise,  and  Agree,  to  and  with  the  said  part  of  the  first  part : 
that  will  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  part  of  the 
first  part,  or  legal  representatives,  the  sum  of  dollars,  in  the 

manner  following :  — 

It  is  agreed  by  and  between  the  parties  to  this  agreement,  as  follows :  — 

1st.  That  for  each  and  every  day's  delay  in  the  performance  and  completion  of 
this  agreement,  or  of  any  extra  work  under  it,  after  the  said  day  of  in 

the  year  one  thousand  eight  hundred  and  ,  there  shall  be  allowed  and  paid 

by  said  part  of  the  first  part,  to  said  part  of  the  second  part,  or  represen- 
tatives, damages  for  such  delay,  if  the  same  shall  arise  from  any  act  or  default  on 
the  part  of  the  said  part  of  the  first  part 

2d.  That  the  said  part  of  the  first  part,  or  representatives,  shall  not  be 
delayed  in  the  constant  progress  of  the  work  under  this  agreement,  or  any  of  the 
extra  work  under  the  same  or  connected  therewith,  by  said  party  of  the  second 
part,  or  by  his  Superintendents  or  any  other  contractor  employed  by  the  said  part 
of  the  second  part,  upon  or  about  the  premises  ;  and  for  each  and  every  day,  if 
any,  shall  be  so  delayed,  additional  day  to  be  allowed  to  complete 
the  work  aforesaid,  from  and  after  the  day  hereinbefore  appointed  for  its  entire 
completion,  unless  upon  the  contingency  provided  for  below  in  the  5th  article. 

3d.  That  each  and  every  person  employed,  by  sub-contract  or  "  piece  work,"  by 
the  said  part  of  the  first  part,  in  the  providing  materials  or  performing  labor  or 
works  in  the  fulfilment  or  execution  of  this  agreement,  shall  be,  in  the  opinion  of 
the  said  Superintendents,  a  suitable,  competent,  and  satisfactory  person. 

4th.  That  the  said  part  of  the  first  part  shall  and  will  engage  and  provide, 
at  own  i#st  and  expense,  during  the  progress  of  the  works  under,  and  until 

7 


76  AGREEMENT  AND  ASSENT. 

the  completion  and  fulfilment  of  this  agreement,  a  thoroughly  competent  "  Foreman 
of  the  Works,"  whose  duty  it  shall  be  to  attend  to  the  general  supervision  of  all 
matters  hereby  undertaken  by  said  part  of  tie  first  part,  and  also  to  the  correct 
and  exact  making,  preparing,  laying-out,  and  locating  of  all  patterns,  moulds, 
models,  and  measurements  in,  to,  for,  and  upon  the  works  hereby  agreed  upon,  from 
and  in  conformity  with  the  said  plans  and  specifications,  and  according  to  the 
direction  of  said  Architects. 

5th.  That  if  at  any  time  during  the  progress  of  the  work  the  said  Superintendents 
shall  find  that  said  work  is  not  carried  forward  with  sufficient  rapidity  and  thorough- 
ness, or  that  the  materials  furnished,  foreman  of  the  works,  sub-contractors  or 
workmen  employed  by  the  part  of  the  first  part,  are  unsatisfactory,  and  insuf- 
ficient for  the  completion  of  the  work  within  the  time  and  hi  the  manner  stipulated 
in  the  plans  and  specifications  aforesaid,  shall  give  notice  of  such  insufficiency 

and  defects  in  progress,  materials,  foreman,  sub-contractors,  or  workmen,  to  the 
party  of  the  first  part ;  and  if  within  three  days  thereinafter  such  insufficiency  and 
defects  are  not  remedied  in  a  manner  satisfactory  to  —  the  party  of  the 

second  part,  through  the  agency  of  said  Superintendents,  or  otherwise,  may  enter 
upon  the  work,  and  suspend  or  discharge  said  party  of  the  first  part,  and  all  em- 
ployed under  him,  and  carry  on  and  complete  the  work,  by  "  days'  work,"  or  other- 
wise, as  may  elect,  providing  and  substituting  proper  and  sufficient  materials 
and  workmen ;  and  the  expense  thereof  shall  be  chargeable  to  the  said  party  of  the 
first  part,  and  be  deducted  from  any  sum  which  may  be  due  to  him  on  a  final 
settlement;  and  the  opinion  of  said  Superintendents  shall  be  final,  and  their 
certificate  hi  writing  conclusive  evidence  between  the  parties  hereto,  on  all  questions 
and  issues  arising  on  or  out  of  this  fifth  article  of  this  Agreement,  subject  to  the 
final  decision  of  the  referees  hereinafter  named. 

6th.  That  the  said  part  of  the  first  part  shall  be  solely  responsible  for  any 
injury  or  damage  sustained  by  any  and  all  person  or  persons,  or  property,  during 
or  subsequent  to  the  progress  and  completion  of  the  works  hereby  agreed  upon, 
from  or  by  any  act  or  default  of  the  said  part  of  the  first  part ;  and  shall  be 
responsible  over  the  party  of  the  second  part  for  all  costs  and  damages  which  said 
party  of  the  second  part  may  legally  incur  by  reason  of  such  injury  or  damage ;  and 
that  the  said  part  of  the  first  part  shall  give  all  usual,  requisite,  and  suitable 
notices  to  all  parties  whose  estates  or  premises,  being  adjoining  those  upon  which 
the  works  hereby  agreed  upon  are  to  be  done,  may  or  shall  be  any  way  interested 
in  or  affected  by  the  performance  of  said  works. 

7th.  That  the  said  part  of  the  first  part  shall,  from  tune  to  time,  during  the 
progress  of  the  said  works,  apply  to  the  said  Architects  for  all  needful  explanations 
of  the  true  intent  and  meaning  of  the  said  plans  and  specifications ;  and  that 
"  working-plans  "  shall,  at  the  expense  of  the  said  part  of  the  second  part,  be 
from  time  to  time,  and  whenever  requisite,  furnished  by  the  said  Architects  to  the 
said  part  of  the  first  part,  upon  reasonable  notice  being  given  to  the  said 
Architects  that  the  same  are  requisite  and  needful ;  and  further,  that  the  said 
part  of  the  first  part  will  not  and  shall  not,  in  the  execution,  performance,  and 


FORMS   OF   CONTRACTS  OK  AGREEMENTS.  77 

fulfilment  of  this  agreement,  in  any  way  deviate  from  the  entire  and  exact  com- 
pliance with,  adherence  to,  and  fulfilment  of  the  said  plans,  "  working-plans,"  and 
specifications,  by  reason  of  any  practical  difficulty  which,  in  opinion,  mav  or 

shall  arise  or  occur ;  unless  some  such  deviation  shall,  in  the  opinion  and  by  the 
certificate  of  the  said  Architects,  become  absolutely  necessary  and  unavoidable,  in 
which  case  said  part  of  the  first  part  to  make  such  deviation  as  they  may 
be  directed  by  said  Architects. 

And  Whereas  it  is  die  intention  of  the  parties  hereto,  that  the  said  part 
of  the  first  part  shall  bear  and  pay  all  the  expenses  necessary  for  and  incident  to 
the  carrying  into  full  and  entire  execution  and  completion  all  the  works  contem- 
plated in  this  agreement,  it  is  further  understood  and  agreed  by  and  between  the 
parties  to  this  agreement,  that  in  case  any  lien  or  liens  for  labor  or  materials  shall 
exist  upon  the  property  or  estate  of  the  said  part  of  the  second  part,  at  the 
time  or  times  when  by  the  foregoing  terms  or  provisions  of  this  agreement  a  pay- 
ment is  to  be  made  by  the  said  part  of  the  second  part  to  the  said  part  of 
the  first  part,  such  payment,  or  such  part  thereof  as  shall  be  equal  to  not  less  than 
double  the  amount  for  which  such  lien  or  liens  shall  or  can  exist,  shall  not  be  pay- 
able at  the  said  stipulated  tune  or  times,  notwithstanding  any  thing  to  the  contrary 
in  this  agreement  contained ;  and  that  the  said  part  of  the  second  part  may  and 
shall  be  well  assured  that  no  such  liens  do  or  can  attach  or  exist  before  shall 

be  liable  to  make  either  of  the  said  payments. 

li  L  expressly  understood  by  the  part  of  the  first  part,  that  all  the  works 
described  or  referred  to  in  the  annexed  specifications  are  to  be  executed  by  the  said 
part  oi*  xKe  first  part,  whether  or  not  the  said  works  are  illustrated  by  the  afore- 
said plans  mid  working-drawings ;  and  that  said  part  of  the  first  part  to 
execute  all  works  shown  by  the  aforesaid  plans  and  working-drawings,  whether  or 
not  said  works  are  described  or  referred  to  in  the  said  specifications. 

If  any  apparent  discrepancy  shall  be  found  to  exist  between  the  plans,  working- 
drawings,  and  the  specifications,  the  decision  as  to  the  fair  construction  of  said 
discrepancy,  and  of  the  true  intent  and  meaning  of  the  plans,  working-drawings, 
and  specifications,  shall  be  made  by  the  Architects  hereinbefore  named ;  and  said 
part  of  the  first  part  shall  provide  and  execute  the  said  works  in  accordance 
with  said  decision,  —  with  the  right  of  a  final  decision  by  the  referees  hereinafter 
named,  —  as  a  part  of  the  original  works  undertaken  by  said  part  of  the  first 
part 

And  Further  Know  all  Men,  That  the  parties  hereto  of  the  first  part 
and  of  the  second  part  severally,  respectively,  and  mutually,  hereby  agree  to  sub- 
mit, and  hereby  do  submit,  each,  all,  and  every  demand  between  them  hereinafter 
arising,  if  any,  concerning  the  value  of  any  changes  of,  or  omissions  in,  or  additions 
to,  the  aforementioned  plans  or  specifications,  or  concerning  the  manner  of  per- 
forming or  completing  the  work,  or  the  tune  or  amount  of  any  payment  to  be  made 
under  this  agreement,  or  the  quantity  or  quality  of  the  labor  or  materials,  or  both, 
to  be  done,  furnished,  or  provided  under  this  agreement,  or  any  other  cause  or 


78  AGREEMENT  AND  ASSENT. 

matter  touching  the  work,  the  materials,  or  the  damages  contemplated,  set  forth,  or 
referred  to,  in  or  by  this  agreement,  or  concerning  the  construction  of  this  agree- 
ment, to  the  determination  of 

the  award  of  whom,  or  the  award  of  a  majority  of  whom 

being  made  and  reported  within  year  from  the  time  hereinbefore 

fixed  upon  for  the  final  completion  of  this  agreement  to  the  Superior  Court  for  the 
County  of  the  judgment  thereof  shall  be  final ;  and  if  either  cf  the 

parties  shall  neglect  to  appear  before  the  Arbitrator    ,  after  due  notice  given 
of  the  time  and  place  appointed  for  hearing  the  parties,  the  Arbitrator    may 
proceed  in  absence. 

In  Witness  Whereof,  The  parties  aforesaid  have  interchangeably  set  their 
hands  and  seals,  the  day  and  year  first  above  written,  to  this  and 
other  instrument    of  like  tenor  and  date. 

(Signatures.)     (Seals.) 

Executed  and  Delivered  in  Presence  of 

STATE  OR  COMMONWEALTH  OF 

COUNTY  OF  A.D.,  18 

Then  the  above-named  personally  appeared  and 

acknowledged  the  above  instrument,  by  them  signed,  to  be  their  free  act. 
Before  me, 

Justice  of  ike  Peace. 

(24.) 
Specification  to  be  annexed  to  the  Building  Contract. 

Specifications  Of  Materials  to  be  provided  and  labor  to  be  performed 

in  the  erection,  and  completion  ready  for  occupancy  (excepting  plumbing  and 

other  water-works,  painting,  glazing,  and  piling)  a  block  of  houses  for 

to  be  located  on  an  estate  recently  purchased  by  him  of  on  the 

easterly  side  of  Street  in  within  about  116  feet  of  the  north-east 

corner  of  Street  and  Street.     Said  houses  are  to  be  constructed 

agreeably  to  plans  prepared  by  ,  Architect,  and  under  the  direction  of 

,  acting  for  and  on  behalf  of  said  as  superintendent 

of  said  building. 

Description.  —  The  block  is  to  occupy  and  cover  the  full  width  from  north  t3 
south  of  said  estate,  with  its  north  and  south  ends  located  on  the  true  boundaries 
of  the  estate  (measuring  about  117  feet  in  length,  and  just  45T^  feet  in  width). 
Said  block  is  to  be  of  four  finished  stories  in  height,  besides  a  finished  story  within 
the  intended  French  roof  proposed  to  cover  the  whole  structure.  A  cellar  is  to  be 
constructed  beneath  the  entire  area  of  the  building,  and  an  area  in  the  rear  of  the 
same ;  the  latter  to  be  of  the  form  and  dimensions  indicated  upon  the  drawings 
referred  to.  The  clear  heights  of  all  the  stories  when  finished  are  to  be  as  follows, 


SPECIFICATIONS  OF  MATERIALS  79 

to  wit:  first,  second,  and  third  stories  each  10  feet;  and  the  French-roof  stoiy  9 
feet.  The  cellar  is  to  be  8  feet  high  in  clear  of  the  plastered  ceiling  and  concrete 
flooring.  The  top  of  the  flooring  of  the  first  story  is  to  be  located  3  feet  4  inches 
above  the  intended  grade  of  the  court- yard  designed  to  be  located  in  front  or  to  the 
west  of  the  block,  as  indicated  particularly  upon  the  profile  drawing  of  the  estate 
from  east  to  west,  forming  one  of  the  drawings  before  referred  to ;  it  being  fully 
understood  that  the  contractor  for  said  block  is  to  fill  in,  grade,  and  enclose  with 
bank  stone-walls,  the  north  and  south  ends  of  the  front  or  west  yard  of  said  estate, 
and  the  north,  south,  and  east  (or  rear)  yard  walls  of  the  said  block,  which  walls 
are  to  be  of  the  sectional  form  indicated  by  drawing  of  the  same,  forming  one  of 
the  sets  of  drawings  referred  to. 

Memo.  —  The  front  or  west  yard  of  the  block  will  reach  in  width  to  the  rear  or 
east  wall  of  a  second  block  of  tenement-houses  designed  to  be  erected  by  said 
Parker  upon  the  front  or  westerly  portion  of  said  estate,  but  forming  no  part  of  the 
works  to  be  estimated  for  under  the  specifications  or  plans. 

Works.  —  The  contractor  for  the  block  i's  at  his  own  proper  cost  and  expense 
to  perform  all  labor  of  every  kind  requisite  for  its  full  completion,  including  all  labor 
necessary  for  exterior  grading,  bank-walling,  sewerage,  flagging  and  paving,  enclos- 
ing walls  and  fences,  and  for  all  other  matters  by  these  specifications  required,  and 
by  the  plans  shown.  Said  works  are  to  be  of  the  best  quality,  and  are  to  be  per- 
formed by  first-class  workmen  only,  with  the  full  right  reserved  to  the  said  superin- 
tendent to  discharge  from  the  employ  of  the  contractor  for  said  block  any  workmen 
not  of  satisfactory  capacity  to  him.  Said  works  are  further  to  be  performed  in 
such  manner  as  to  warrant  and  insure  on  the  part  of  the  contractor  the  most  relia- 
ble and  thorough  construction,  warranted  in  ah1  cases  to  stand  without  start  or  flaw, 
and,  in  the  case  of  all  wood-work,  warranted  free  from  shrinkage,  and  so  to  remain. 
Said  works  are  further  to  be  so  done  as  to  progress  at  such  rates  of  progress  as  are 
hereinafter  stipulated,  not,  however,  inconsistent  with  the  quality  of  work  required 
as  aforesaid. 

Materials.  —  All  materials  of  every  kind  requisite  for  the  full  and  entire  com- 
pletion of  the  block,  together  with  its  exterior  adjuncts  hereinbefore  and  hereinafter 
named,  are  to  be  provided  at  the  sole  cost  of  the  contractors.  Said  materials  are 
to  be  of  the  several  kinds  and  quality  hereinafter  recited  and  described,  but  when 
not  fully  set  forth  in  these  plans  and  specifications,  then  the  kinds  to  be  used  are  in 
all  cases  to  be  the  very  best  marketable  qualities.  All  materials  proposed  to  be 
used  by  them  (the  contractors)  are  at  all  times  to  be  subject  to  inspection  for  ap- 
proval or  rejection  by  said  superintendent;  and  the  said  superintendent  shall  be 
duly  notified,  and  have  the  full  opportunity  in  case  he  so  elects  to  examine  and  in- 
spect all  materials  before  any  of  the  same  are  delivered  at  the  site  of  the  build- 
ing ;  and  all  materials  he  shall  elect  to  reject  shall  be  promptly  replaced  by  such 
other  stock  as  shall  be  satisfactory  to  the  said  superintendent,  with  the  right  on  the 
part  of  the  contractor  to  appeal  from  the  decision  of  said  superintendent  to  the 


80  AGREEMENT  AND  ASSENT. 

referees  named  over  the  signatures  of  the  owner  of  the  property  and  the  contractor 
for  the  block,  hi  the  agreement  to  be  by  them  executed  as  a  part  of  these  presents. 
All  materials  designed  for  the  building  shall  at  all  times  be  suitably  housed,  covered, 
and  protected,  including  all  walls  daily  on  leaving  the  works.  No  window-frame 
or  other  exterior  wood-finish  shall  be  left  unprimed  more  than  one  day  after  the 
same  is  worked  or  set.  Any  work  or  material  damaged  in  any  way  during  the  erec- 
tion of  the  building  shall  be  promptly  replaced  on  demand  of  the  superintendent. 
The  premises  are  not  to  be  considered  accessible  from  Gloucester  Place  for  the  pas- 
sage of  men  or  materials,  unless  the  written  consent  of  the  owners  of  the  fee  of 
said  place  is  first  obtained.  The  care  and  protection  of  the  street  (Washington) 
by  day  and  night  is  not  to  be  charged  upon  the  contractors  for  said  block ;  and,  for 
this  reason,  all  the  materials  of  every  kind  designed  to  be  used  therein,  must  be 
landed  fairly  in  the  rear  or  to  the  west  of  the  contemplated  second  or  front  block, 
with  the  right  of  passage,  however,  through  the  centre  opening  in  said  second  or 
front  block,  for  materials,  and  men  engaged  in  the  construction  of  said  rear  block. 

Basement  and  Yard  Drainage — (See  detailed  plans  of  drains,  cesspools, 
and  aqueducts.)  Three  main  drams  of  16  inches  clear  diameter  are  to  start  from 
the  three  rear-yard  cesspools,  at  proper  levels  of  being  wholly  below  basement-story 
flooring.  These  drains  are  to  pass  directly  into  and  under  the  front  yard  of  the 
block,  after  passing  and  connecting  with  three  cesspools  to  be  located  on  the  base- 
ment-story centre  passageway  under  same,  and  in  the  said  yard.  They  are  to  enter 
a  single  drain  of  two  feet  clear  diameter ;  which  drain  the  contractor  for  this  block 
is  to  build  through  and  under  the  archway  of  the  contemplated  front  block  of 
buildings,  at  proper  levels,  and  with  sure  pitch,  to  connect  with  the  Washington- 
street  sewer  in  front  of  said  Parker  estate ;  which  said  connection  is  to  be  fully  and 
legally  made  with  said  city  sewer.  But  the  cost  of  right  to  enter,  including  right 
to  run  plumbing  works  therein,  will  be  arranged  for  and  paid  by  said  Parker.  In 
addition  to  the  three  drains  through  the  block  aforesaid,  there  are  to  be  branch- 
drams  from  the  soil  pipes  of  all  water-closets,  of  12  inches  clear  diameter  each ;  and 
these  drains  are  all  to  enter  the  principal  drains  aforesaid  to  the  west  or  outside  of 
the  three  cellar  cesspools  before  referred  to ;  and  all  other  waste-pipes  of  sinks  are 
to  enter  said  drains  to  the  east  or  inside  of  these  basement-story  cesspools.  Eight 
aqueducts  are  to  be  laid  from  the  shoes  of  the  eight  roof-conductors,  and  five  others 
from  the  bottom  of  the  five  stone  staircases  outside  of  the  basement.  Three  aque- 
ducts may  be  square,  but  are  to  be  fully  six  inches  clear  each  way  and  are  to  be 
covered  with  1^  inch  slate  stones  (not  brick)  ;  and  said  aqueducts  are  to  have  full 
fall,  workmanlike  and  endurable  connections,  with  the  other  drains,  all  of  which 
connections  shall  be  in  such  localities  as  to  make  sure  that  no  "  soil "  odor  can 
"  blow  up  "  through  the  aqueducts  into  conductors  or  into  areas  at  the  foot  of  the 
several  basement  steps  aforesaid. 

Memo.  —  The  paving  of  the  yards  and  that  of  the  centre  passageways  inside  of 
basement  story  is  to  pitch  toward  the  several  cesspools  properly  and  -egularlv  on 
inclines 


SPECIFICATIONS   OF  MATERIALS.  .  81 

Memo.  —  Every  wall  and  pier  and  wooden  partition  of  basement  story  is  to  be 
lime-whitewashed  (three  heavy  coats  by  an  experienced  expert).  Proper  aque- 
ducts in  brick  are  to  be  laid  for  Cochituate  mains  and  metres,  and  for  gas  ditto 
ditto  so  far  as  the  same  may  be  required  by  superintendent  to  insure  workmanlike 
construction  for  "  entering  "  these  matters  from  such  points  in  the  front  yard  of  the 
block  as  the  water  and  gas  company  bring  same. 

The  two  north  and  south  boundaries  of  the  front  yard  and  three  boundaries  of 
the  rear  yard,  excepting  across  the  rear  end  of  Gloucester  Place,  are  to  be  fully  en- 
closed with  12  inch  brick  walls  resting  on  the  copings  of  the  several  bank- walls, 
above  which  level  (taken  to  be  the  front-yard  level  of  the  block),  said  walls  are  to 
be  ten  feet  high.  Said  walls  are  to  have  in  connection  therewith  buttresses  of  8  by 
IS  inches  each,  from  inside  face  of  each  wall ;  and  the  walls  and  the  buttresses  are 
to  be  capped  with  granite  coping  of  2  inches  more  width  than  the  buttresses  and 
walls,  4  Laches  thickness  at  the  edges,  and  9  inches  in  centre,  and  to  be  straight 
and  well  tooled,  and  cramped  on  under  side,  each  piece  to  the  other  —  all  which 
cramps  are  to  pass  down  into  the  walls  and  buttresses.  Said  coping  is  to  be  wholly 
set  in  cement,  and  the  whole  of  the  joints  flushed  with  same  material.  All 
yard  paving  is  to  be  wholly  in  cement,  and  grouted  and  bedded  in  same  manner  aa 
cellar  paving  aforesaid. 

First  Story.  Brickwork.  —  The  four  exterior  walls  of  this  story  are  each 
to  be  12  inches  thick,  and  the  two  main,  cross,  party,  subdivision-walls  to  be 
of  corresponding  thickness  with  the  outside  walls.  The  two  main  corridor  walls 
and  those  around  stairways  (three  stairways)  in  this  story  are  to  be  each  8  inches 
thick  the  entire  length  of  the  building,  reaching  fully  in  all  cases  to  the  top  of 
flooring-planks  of  the  second  story.  The  twelve  stacks  of  chimneys  indicated 
on  plans  of  this  story  are  to  be  built  in  connection  with  and  made  part  of  the 
several  walls,  as  shown.  Said  chimneys  are  to  be  commenced  as  floor-levels  of  the 
basement  story,  upon  sto,..e-platform  foundations  to  be  made  part  of  the  other  wall 
foundations,  and  built  throughout  said  story  with  two  piers  of  20  by  20  inches  each, 
to  be  covered  with  a  semicircular  arch  tied  with  an  iron  beam  bar,  and  the  whole 
levelled  up  solid  to  first  floor,  with  a  flue  in  each  chimney  of  8  by  12  inches  clear, 
square,  and  true,  and  plastered  honorably  over  every  square  inch  of  inside  surface, 
thick  and  heavy.  No  hearths  or  open  fire-places  are  intended  in  chimneys.  Water- 
closet  flues,  and  the  single  flue  of  each  room  in  which  a  chimney  exists,  is  to  be 
fitted  with  a  7  inch  cast  iron  funnel-piece  and  stopper  of  heavy  and  durable  make  ; 
but  no  ventilating-flue  is  to  be  provided  separate  from  the  single  smoke-flue  of  each 
apartment.  All  the  said  brickwork  of  the  first  story  is  to  be  laid  in  lime-mortar  of 
first  quality,  Eastern  stock,  using  sharp  sea-sand  only  for  same.  All  chimneys  to 
have  8  inch  backs  and  4  inch  withes. 

Second  and  Third  Stories.  —  The  exterior  walls  are  all  to  be  continued  12 
inches  thick,  and  the  chimneys  built  up  in  connection  therewith  in  the  same  man 
ner  as  before  described  for  first  story,  with  an  additional  flue  of  the  second  and 


82  AGREEMENT  AND  ASSENT. 

third  stories.  The  two  interior,  cross,  division-walls  will  be  earned  through  both 
these  stories,  but  need  be  only  eight  inches  thick.  The  two  enclosing  walls  of  each 
of  the  two  end  stair-flights  in  both  these  stories  are  to  be  continued  of  brick,  and 
of  8  inch  thick  each.  The  several  window  and  door  openings  in  all  the  walls  of 
the  three  stories  above  the  basement  story  are  to  be  formed  with  reliable,  arched 
heads  on  wooden  lintels,  and  the  exterior  wall-windows  to  have  full  and  square  re- 
turns for  window-frames.  All  frames  are  to  be  fitted  in  solid,  and  plastered  in  con- 
nection with  brickwork.  None  of  the  walls  are  to  be  recessed  beneath  the  windows. 
Every  floor-plank  is  to  be  accurately  levelled  up,  and  the  brickwork  filled  solid 
around  it,  and  the  roof-planks  also  at  bottom.  The  fourth  or  French-roof  story  will 
have  the  four  exterior  walls  built  to  top  of  plates  of  frame  of  roof,  say  2^  feet  above 
its  flooring ;  and  besides  this  the  brickwork  of  the  said  four  walls  is  to  be  continued 
up  entirely  to  the  roof-boarding  under  the  gutter-flashing.  The  several  corner 
quoins  of  the  front  side  of  the  four  corner  pilasters  of  the  side  and  the  dentil  course 
over  the  third-story  windows  of  this  side  are  ail  to  be  formed  of  brick ;  and  all  of 
them  are  to  be  made  outside  of  the  faces  of  the  wall,  thereby  increasing  in  thickness 
as  much  more  than  12  inches  as  the  several  matters  project. 

All  chimneys  are  to  be  topped  out,  of  one  uniform  height  and  one  pattern  ;  and 
this  pattern  is  to  be  precisely  like  the  detailed  drawing  to  be  given. 

Memo.  —  The  enclosing  walls  of  the  two  end  staircases  are  to  be  carried  to  roof- 
boarding  of  8  inches  thickness  each. 

Memo.  —  The  9  nine  cesspools  hereinbefore  referred  to  are  to  be  36  inches  square 
in  clear  of  walls ;  which  walls  shall  be  8  inches  thick,  with  an  8  inch  bottom  to 
same,  and  a  four  inch  cut-off  wall  on  iron  bars,  across  the  same.  The  whole  inside 
to  be  rendered  in  hydraulic  cement ;  and  the  curb  and  iron-trap  strainer  aforesaid 
to  be  set  complete.  The  whole  of  the  drains  and  aqueducts  are  to  be  most  thor- 
oughly rendered  in  hydraulic  cement.  The  aqueducts  may  have  4  inch  walls ;  but 
all  the  remaining  drains  shall  have  8  inch  walls,  and  shall  be  Gothic  shaped  at  bot- 
tom ;  and  the  stone  covering  of  said  drains  shall  not  be  less  than  2  inches  thick, 
with  full  and  square  joints  :  the  whole  set  in  hydraulic  cement.  The  walls  of  the 
drains  shall  be  laid  wholly  in  hydraulic  cement.  The  contractor  shall  use  all  rea- 
sonable care  that  the  grounds  on  which  the  drains,  aqueducts  and  cesspools  to 
be  built,  is  properly  prepared  to  prevent  settlement  or  start  of  said  works  ;  and,  if 
the  superintendent  elects  on  account  of  the  instability  of  the  soil  to  substitute  drain- 
pipe or  plank  drains  for  the  brick  ones  hereinbefore  stipulated,  the  contractor  is  to 
make  the  changes  as  directed ;  and  all  such  difference  of  cost  (more  or  less)  as  the 
superintendent  elects  to  be  just,  shall  be  accepted  by  said  contractor,  and  settle- 
ment made  accordingly.  Turn  arches  over  all  openings  between  cellar-piers,  and 
level  up  to  floors.  The  bricks  to  be  supplied  by  the  contractor  are  to  be  as  follows, 
in  quality :  those  for  backing  exterior  walls,  and  for  all  interior  walls  and  chimneys, 
may  be  of  the  Boston  Brick  Co.'s  most  costly  cull ;  those  for  the  drains  and  paving 
and  other  underground  shall  be  Pilastow's  Eastern  or  Charlestown  clay  brick,  hand- 
made ;  the  outside  courses  of  the  two  end-walls  and  of  the  rear  wall  and  of  the 
chimney-tops  shall  be  of  same  hand-made,  even-colored,  darkened,  hard  brick  of 


SPECIFICATIONS   OF  MATEEIALS.  83 

uniform  size,  straight  and  true,  and  jointed-laid ;  the  outside  courses  of  the  front 
wall  shall  be  of  a  quality  of  face-brick  as  good  and  as  fair  a  quality  of  Danvers 
face-brick,  to  be  laid  plumb-bond,  and  properly  jointed  off.  All  bricks  shall  be  wet 
immediately  previous  to  laying  same.  The  contractor  assumes  all  cost  of  supplying 
himself  with  Cochituate  for  use.  The  exterior  cornices,  brackets  beneath,  and  small 
band  mouldings  beneath  brackets,  are  all  to  be  of  wood,  to  be  constructed  and  put 
up  by  carpenter ;  but  the  mason  is  to  build  in  all  brackets,  and  assist  carpenter  to 
space  off  and  lay  out  same. 

Slating.  —  The  two  upright  sides  of  the  roof  are  to  be  covered  with  1 6  inch 
slates,  Welsh ;  the  whole  to  be  of  first  quality,  and  agreeable  to  a  sample  which  the 
superintendent  will  select,  and  submit  to  bidders  before  estimating.  Said  slates  are 
to  be  put  on  with  2^  inch  lap  (full),  and  to  be  truly  bonded,  to  break  joints  in  centres 
to  be  put  on  with  the  heaviest  quality  of  composition  (not  galvanized)  nails.  The 
chimney-tops ;  sides,  tops,  and  sills  of  luthern  windows;  angle-corners  of  roof;  top 
of  upper  wood-finish  of  roof;  skylights ;  scuttle ;  scuttle  over  centre  staircase,  or 
near  it;  as  also  all  other  required  places,  —  are  to  be  flashed  with  10  oz.  zinc  and 
4  Ib.  lead  where  the  superintendent  calls  for  the  same ;  and  the  contractor  for  the 
slating  is  to  be  held  responsible  that  furnishes  and  applies  flashing-stock  amply  suffi- 
cient to  insure  an  extra,  first-class,  tight,  and  permanent  job,  with  every  piece  of 
stock  cut  and  fitted  and  secured  of  such  sizes  and  shapes  as  the  superintendent,  if 
he  elects  so  to  do,  may  direct. 

Memo.  —  The  slates  of  the  front  side  of  roof  to  have  semic»rcular  ends. 

Gutters  and  Conductors.  —  The  front  and  rear  walls  of  the  block,  includ- 
ing the  four  heads  or  returns  on  the  two  ends  of  the  block,  are  to  be  fitted  with  20 
oz.,  best-quality  sheet-copper  to  be  of  cima  recta  pattern,  and  made  exactly  hi  ac- 
cordance with  a  full-size  drawing  to  be  given.  This  gutter  is  to  be  seated  on  to 
wood  coving  or  casing  of  main  cornice ;  and  there  is  to  be  a  back  flashing  from  the 
inner  edge  of  said  gutter,  on  its  top,  of  same  quality  and  16  oz.  weight  of  copper, 
passing  up  beneath  slating  8  inches,  and  passing  under  sills  of  each  luthern  window, 
and  up  to  inside  face  to  its  top,  and  there  turned  on  and  secured  with  all  suitable 
bends  and  heads  of  copper  on  each  side  of  the  lutherns,  as  well  as  over  their  entire 
top-surface  or  roof.  The  skylight- hatches,  and  that  of  the  scuttle  in  flat  of  main 
roof,  must  be  covered  with  16  oz.  copper  also,  and  the  whole  made  everywhere 
tight  and  secure  and  workmanlike.  There  are  to  be  eight  conductors  of  cold  and 
rolled  copper,  of  16  oz.  to  the  foot,  put  up,  and  firmly  secured  to  the  outside  faces 
of  the  four  exterior  walls.  Said  conductors  are  to  be  connected  with  the  gutters 
above  by  massive  goose-necks  most  substantially  soldered  and  secured,  and  of  prop- 
er diameter  ;  and  the  fifteen  feet  of  said  conductor,  together  with  the  shoes  and  un- 
derground lengths  necessary  for  reaching  and  fully  entering  the  aqueduct  of  brick, 
are  to  be  made  of  the  heaviest  pattern  of  cast-iron,  to  be  strongly  connected  with 
the  four  exterior  walls,  as  to  resist  the  most  possible  abuse  that  loy$  can  bring  to 
bear  on  the  said  pipes. 


84  AGREEMENT  AND  ASSENT. 

Plastering.  —  The  walls,  ceilings,  and  partitions  of  each  of  the  four  finished 
stories  of  the  building,  throughout  every  apartment,  passageway,  stairway,  corridor, 
and  hall,  and  including  all  closets  and  water-closets,  are  to  be  lathed  on  wood  fur- 
ring for  five  nailings,  with  sound,  dry,  pine-laths,  free  from  sap  and  other  defects, 
and  secured  with  heavy  3d  penny  nails.  The  laths  to  be  universally  a  full  quarter 
of  an  inch  apart.  The  ceilings  of  the  cellar  to  be  lathed  for  plastering  throughout. 
Each  floor  of  the  four  finished  stories  is  to  be  plastered  between  upper  and  under 
with  a  heavy  coat,  f  inch  thick,  of  lime  and  hair  mortar.  All  other  plastering  is 
to  be  done  two  coats,  —  one  of  lime  and  hair  mortar,  and  the  second  a  skim  coat 
of  lime  and  sand  putty.  All  other  plastering  is  to  be  done  two  coats,  —  one  of 
lime  and  hair  mortar,  and  the  second  a  skim  coat  of  lime  and  sand  putty ;  forming 
the  first  quality  of  two-coat  work,  as  usually  understood  in  best  houses,  as  the  walls 
are  not  to  be  papered.  The  ceilings  and  walls  both  are  to  be  finished  of  entire 
uniform  shade  of  plastering,  without  staging-streaks,  or  break-offs  in  any  place. 
No  cornices  or  centre-pieces  are  required.  The  contractor  shall  do  the  usual  and 
fair  amount  of  patching  after  carpenters  have  finished,  without  charge  to  owner  of 
the  building.  The  risk  of  the  plastering  being  touched  by  frost,  if  work  of  build- 
ing is  delayed,  rests  with  the  plasterer  wholly. 

Miscellaneous.  — Mason.  In  both  parlor  and  kitchen  of  each  tenement,  there 
is  to  be  a  red  slate-stone  mantel,  to  be  supported  by  two  iron  bronzed  brackets  of 
some  neat  pattern,  the  whole  to  be  selected  and  approved  ty  the  superintendent. 
The  mason  is  to  include  the  paving  of  the  whole  area  of  the  yard  in  front  of  the 
block  up  to  the  rear  line  of  the  contemplated  front  block  of  houses ;  and  said  pav- 
ing is  to  be  done  in  cement,  like  that  hereinbefore  required. 

Carpentry.  —  The  carpenter  is  to  be  equally  responsible  with  the  mason  that 
all  parts  of  the  building  are  correctly  laid  out,  from  the  several  plans  by  the  archi- 
tect ;  and  he  is,  in  consultation  with  the  superintendent  and  mason,  to  arrange  all 
details  and  portions  of  construction  in  ample  season  for  them  all  to  be  applied  cor- 
rectly to  the  buildings.  He  is  also  at  his  own  cost  to  prepare  all  centres,  not  only 
for  windows  and  openings,  but  also  for  drains.  He  is  also  to  make  all  necessary 
poles  and  rods  as  guides  for  laying  out  all  works.  He  is  to  make  skeleton  frames, 
and  set  the  same,  for  all  openings  in  walls.  He  is  to  cover  all  freestone  and  granite 
projections,  including  doorways,  and  water-table  of  underpinning.  He  is  to  safely 
shore  all  floors,  under  all  such  points  as  the  superintendent  directs,  while  the  skele- 
ton of  the  structure  is  in  progress.  He  is  to  make  one  set  of  patterns  from  the  full- 
size  drawings  of  all  freestone,  moulded,  and  arch  work.  His  works  are  to  embrace 
all  branches  of  trades  hereinbe/ore  stipulated  under  the  head  of  work  and  labor 
and  materials,  it  being  understood  that  in  connection  with  the  contractor  for  the 
masonry,  the  buildings  are  to  be  left  in  a  completed  state,  ready  for  occupancy,  ex- 
cepting only  metal-works  of  the  plumbing.  No  furnaces,  fireplaces,  grates,  stoves, 
or  heating-apparatus  of  any  kind,  being  intended  to  be  required  of  the  contractors, 
saving  only  chimneys,  funnel  pieces,  and  stoppers. 


SPECIFICATIONS  OF  MATERIALS.  85 

No  papering  is  to  be  required  of  contractors ;  and  no  gas  piping  or  fixtures  is  to 
be  embraced  in  the  estimates  of  contractors.  Such  of  the  water-closet  ventilators 
as  are  required  of  wood  are  to  be  constructed  and  topped  out,  and  otherwise  fully 
put  up  and  completed,  precisely  as  superintendent  says. 

Framing.  —  To  provide  the  first  marketable  quality  of  Eastern  spruce  stock, 
and  frame,  put  on,  and  otherwise  fully  complete,  the  floors  of  the  first,  second, 
third,  and  fourth  stories,  with  planks  of  2  by  12  inches,  to  be  placed  as  indicated  by 
flooring-plans;  spanning  in  all  cases  from  the  front  and  rear  exterior  walls  on  to  the 
corridor-walls,  which  run  through  the  centre  of  the  length  of  the  entire  building. 
Each  floor  is  to  contain  headers  and  trimmers  of  4  by  1 2  inches  wherever  indi- 
cated by  the  plans,  excepting  those  for  enclosing  staircases,  which  are,  in  all  the 
floors,  to  be  6  by  12  inches.  The  planks  in  all  the  floors  over  the  centre  corridor 
may  be  2  by  9  inches  only.  The  first  floor  will  contain  girders  of  7  by  10  inches, 
to  be  located  in  the  position  indicated  by  the  flooring-plan  of  that  story.  These 
girders  are  to  be  of  the  soundest  white  pine,  of  last  year's  growth,  and  last  year's 
delivery  in  Boston,  and  not  in  water  for  the  last  six  months  at  least.  These  gird- 
ers are  to  be  worked  square  and  true,  and  are  to  rest  on  the  exterior  walls  and  in- 
terior piers.  Each  flooring  is  to  have  four  full  rows  of  diagonal  bridging  of  inch-board 
pieces  3  inches  in  width  and  1  inch  thick,  to  be  accurately  cut  in,  and  nailed  with 
twelvepennies.  The  whole  of  the  flooring-planks  are  to  rest  just  one  full  half- 
brick  in  length  of  bearing  on  walls,  and  four  inches  full  on  the  corridor  walls  and 
partitions ;  and  the  same  of  the  headers  and  trimmers  in  each  floor.  All  headers 
and  trimmers  are  to  be  mortised  and  tenoned  and  oak-pinned,  and  those  of  the 
stairways  are  to  have  wrought-iron  stirrup-straps  of  2  by  ^  inch  iron.  The  upper 
and  under  edges  of  every  flooring-plank  is  to  be  worked  by  a  plane  to  a  regular 
crown  of  |  of  an  inch  in  their  length.  There  shall  be  twelve  wrought-iron  ties 
attached  to  the  trimmers  of  each  floor  in  the  position  the  superintendent  shall  say ; 
and  all  these  ties  are  to  go  to,  and  be  "  upset "  in,  the  exterior  walls  to  within  4 
inches  of  the  outer  face  of  each  wall.  Each  tie  to  be  3^  feet  long,  of  £  inch  round 
iron,  in  addition  to  the  length  required  for  "upsetting  "  the  two  ends. 

The  roof  to  be  framed  with  its  two  upright,  angular  sides  of  plank  3  by  9  inches, 
to  be  placed  only  18  inches  apart  on  centres.  Said  planks  are  to  be  footed,  and 
securely  spiked  to  wall-plates  of  3  by  10  inches;  which  plates  are  to  be  bedded  on 
and  bolted  to  the  exterior  walls  by  bolts  being  built  in  for  the  height  of  5  feet  hi 
said  walls  once  in  every  15  feet  length  thereof.  The  tops  of  the  aforesaid  rafters 
are  to  be  headed  into  a  border-stick,  which  is  to  extend  the  entire  length  of  the 
two  sides  of  the  block,  and  is  to  measure  5  by  9  inches ;  being  properly  framed  (not 
merely  spiked)  on  to  the  rafters.  This  border-piece  and  the  heads  of  the  two  main 
corridor-partitions  are  to  form  supports  for  the  two  ends  of  the  planks  designed  to 
form  the  top  or  flat  portion  of  the  roof.  Said  planks  are  to  be  fully  3  by  12  inches, 
to  be  placed  only  8  inches  apart  on  centres,  and  bridged  precisely  like  the  floors 
aforesaid  by  with  one  row  only  on  each  side  of  the  corridor-partitions.  The  roof- 
Btock  is  ah1  to  be  as  dry  and  as  perfect  as  that  for  the  floors  aforesaid ;  and  the  up- 


86  AGEEEMENT  AND  ASSENT 

per  edges  on  outer  edges  of  all  the  planks  are  to  be  worked  true  with  plane,  and 
those  in  the  flat  to  be  crowned  regular  1  inch  in  their  length.  Every  part  of 
the  framing  of  floors  and  roof  is  to  be  so  mortised,  tenoned,  spiked,  nailed,  stayed, 
and  otherwise  finished  and  secured,  as  to  make,  uff'j  only  a  first-class,  workmanlike 
job,  but  one  to  be  warranted  free  from  start  or  tremble,  and  permanently  so  to 
remain.  On  each  side  of  each  luthern  window,  there  is  to  be  a  stud  of  3  by  6  inches, 
with  a  head-piece  of  same  size  at  top  of  window ;  and  these  six  studs  are  designed 
to  go  perpendicularly  down  to  the  top  of  the  roof-story  flooring,  just  down  the  exte- 
rior walls,  and  there  to  foot  on  a  plank  which  is  to  run  the  whole  length  of  the 
building ;  which  plank,  as  well  as  the  side-studs  and  head-piece,  are  all  to  be  firmly 
spiked  and  secured. 

Purring  and  Partitions.  —  The  brick  walls,  ceilings,  and  stairway  through- 
out the  four  finished  stories,  are  to  be  furred  with  3  by  1  inch  dry  spruce  furrings, 
set  to  give  five  nailings  to  a  lath.  They  are  to  be  put  on  the  walls  with  twelvepenny 
nails,  and  on  the  ceilings  with  tenpennies.  Grounds  ^  of  an  inch  thick  are  to  be 
put  up  for  all  finish,  and  ^  inch  beads  for  the  angles  of  the  walls  and  stairways. 

The  partitions,  except  those  which  are  brick,  are  to  be  framed  with  sound,  sea- 
soned spruce  lumber ;  the  studs  to  be  2  by  4  inches ;  door  studs  and  girths,  and 
window  studs  and  girths,  3  by  4  inches ;  plates  3  by  4 ;  and  sills  2  by  4  inches :  all 
to  be  thoroughly  bridged  with  cross  bridging,  and  to  be  braced  over  the  doors  and 
windows. 

All  of  the  above  work  is  to  be  done  in  the  most  thorough  manner,  and,  when 
ready  for  the  plastering,  is  to  be  plumb,  square,  and  straight. 

Memo.  —  The  caps  and  sills  of  every  partition  in  every  story  are  to  be  seasoned 
Southern  pine,  properly  fitted  and  secured. 

Tinning.  —  The  dormer-window  roofs,  and  the  upper  portion  or  flat  of  the  main 
roof,  are  to  be  covered  with  best  quality  of  charcoal-leaded,  of  first  quality  MP 
brand  roofing-tin ;  to  be  laid,  lapped,  soldered,  and  secured  in  the  most  thorough 
manner,  and  warranted  a  first-class  and  permanently-tight  job  throughout. 

Rough  Boarding.  —  The  roofs  are  to  be  boarded,  and  the  under-floors  to  be 
laid  with  sound,  seasoned  white-pine  boards,  matched  and  mill-planed  ;  laid  close, 
and  thoroughly  nailed ;  and  those  to  the  slated  portion  of  the  roof  are  to  be  cov- 
ered with  the  best  quality  of  tarred  sheathing-paper. 

Outside  Finish.  —  The  dormer-windows,  cornices,  brackets,  and  small  band- 
mouldings  beneath  them,  are  to  be  wrought  of  thoroughly-seasoned,  clear,  white- 
pine  stock,  in  the  forms  shown  by  the  drawings ;  and  they  are  to  be  thoroughly 
secured  to  the  brickwork  where  they  come  in  contact  with  it. 

The  doorway  is  to  be  framed  with  2  by  4  inch  studs,  and  2  by  6  inch  rafters, 
and  is  to  be  boarded  with  matched  and  mill-planed  pine  covering-boards,  and  cov- 
ered with  tin,  like  the  roof.  It  is  to  have  a  rebated  plank  door-jamb,  4  inch  out 


SPECIFICATIONS   OF  MATEEIALS.  87 

side  and  iasido  casings,  and  a  white-pine  door  with  four  plain  panels.  The  door  is 
to  be  2  inches  thick,  hung  with  stout,  loose  butt-hinges,  and  fitted  with  a  good  lock, 
inside  bolts,  and  neat  and  durable  trimmings. 

Windows.  —  All  the  windows  inside  and  out,  excepting  those  in  the  cellar,  are 
to  have  box-frames  with  2  inch  sills  and  yokes,  and  1  inch  inside,  outside,  and  back 
casings ;  and  staff-beads  of  white  pine  for  those  in  the  brick  walls ;  but  no  back  cas- 
ings or  staff-beads  for  those  in  the  wooden  partitions.  They  are  to  have  1  inch 
pulley-stiles,  -|  inch  inside,  and  £  inch  parting  beads  of  hard  pine. 

Each  of  the  above  windows  is  to  be  fitted  with  two  1-J  inch  white-pine  sashes, 
moulded  and  coped.  The  lower  sashes  in  the  inside  of  partition-windows  are  to  be 
firmly  secured  to  the  frames ;  the  upper  sashes  in  the  said  windows,  and  both  sashes 
in  each  of  the  other  windows,  are  to  be  hung  with  best  flax  sash-lines,  steel  axle- 
pulleys,  and  round  iron  counter-weights,  and  fitted  with  bronze  sash-fastenings,  to 
cost  $7  per  dozen.  They  are  to  have  pockets  neatly  cut  into  the  pulley-stiles, 
and  secured  by  brass  screws.  Each  window  is  to  be  cased  as  shown  by  the  draw- 
ings, and  finished  with  moulded  stools  and  moulded  architraves,  as  therein  repre- 
sented. The  upper  sash  of  each  and  every  window  in  all  the  halls  and  staircases  is 
invariably  to  be  hung  and  fastened. 

The  cellar-windows  are  to  have  white-pine  rebated  plank  frames,  and  a  single  sash 
each.  The  sashes  to  be  hung  with  stout  iron  hinges,  and  fitted  with  neat  and  dura- 
ble buttons  and  catches. 

The  skylight  frames  are  to  be  of  thoroughly-seasoned,  clear,  white-pine  stock, 
rebated  for  the  sashes,  put  together  with  white  lead,  and  finished  off  in  a  neat  and 
durable  manner. 

Doors.  —  All  the  doors  are  to  be  made  of  thoroughly-seasoned,  clear,  white-pine 
stock  ;  the  outside  doors  to  both  front  and  rear  being  2  inches  thick,  the  principal 
doors  in  the  rooms  and  entries  1|-,  and  the  closet  doors  l£  inches  thick.  The  out- 
side doors  are  to  be  made  in  the  forms  shown  on  the  drawings ;  are  to  be  hung  with 
three  sets  of  5  inch,  ornamental,  bronzed,  loose,  butt-hinges,  and  fitted  with  locks, 
bolts,  and  trimmings,  to  be  selected  by  the  superintendent,  and  to  cost  for  such 
locks,  bolts,  and  trimmings,  the  sum  of  &6  exclusive  of  the  cost  of  putting  on.  The 
basement  doors  are  to  have  locks,  trimmings,  bolts,  and  loose  buttrhinges,  to  cost 
$5  to  each  door.  The  doors  to  the  entries,  rooms,  and  closets,  are  to  have  four 
moulded  panels  to  each,  and  are  to  be  of  the  sizes  marked  on  the  plans.  All  are 
to  be  hung  with  stout,  iron,  loose  butt-hinges.  Those  for  the  storerooms,  pantries 
between  the  different  rooms,  and  the  entry  doors,  are  to  have  locks  and  trimmings 
to  cost  $5  to  each  door,  on  the  average.  The  doors  to  the  bedrooms,  closets 
and  to  the  water-closets,  are  to  have  mortised  spring-latches  with  knobs,  &c.,  to 
correspond  to  those  to  the  other  doors  ;  and  each  water-closet  is  to  be  fitted  with 
an  inside  brass  bolt,  neat  and  durable.  The  doors  to  the  coal-bins  are  to  be  made 
of  matched  and  mill-planed  white-pine  stock,  battened ;  are  to  be  hung  with  stout 
strap-hinges ;  and  each  is  to  be  fitted  with  a 


88  AGREEMENT  AND  ASSENT. 

The  fly-dpors  of  tlie  vestibule  are  to  be  1^  inches  thick,  with  plain  panels.  They 
are  to  be  hung  with  loose  butts,  double-action  springs  of  a  satisfactory  quality,  brass 
bolts  to  the  top  and  bottom  of  one  half,  and  a  lock  to  the  other  half.  This  door,  or 
the  outside  door,  at  the  option  of  the  superintendent,  is  to  have  a  lever  night-lock 
of  good  quality,  with  fifty  (50)  keys. 

The  inside  doors  are  to  be  finished  with  hard-pine  thresholds,  2  inch  rebated 
and  beaded  frames  of  white  pine,  and  architraves  to  correspond  with  the  window- 
finish  in  the  various  parts  of  the  building. 

The  outside  doors  are  to  be  hung  to  3  inch  plank  frames,  properly  dogged  to 
the  thresholds ;  and  jambs  finished  inside  like  the  inside  door,  and  outside  with 
staff-moulding. 

Blinds.  —  Each  window  (excepting  those  in  the  basement  and  French  roof)  on 
the  exterior  of  the  building  is  to  have  a  pair  of  1J  inch  mortised  slat-blinds,  made 
with  rebated  and  beaded  stiles,  and  three  rails  to  each.  They  are  to  be  hung  with 
the  best  quality  of  blind-hinges,  and  fitted  with  satisfactory  fastenings. 

Stairs.  —  The  stairs  are  to  be  framed  with  deep  spruce-plank  stringers  and 
landings  and  winders,  as  shown  on  the  drawings.  They  are  to  have  white-pine 
string  and  gallery  finish,  hard-pine  risers,  treads,  and  balusters.  The  balusters  to 
be  round,  and  l£  inches  in  diameter.  The  posts  are  to  be  10  inches  square,  and 
the  newels  5  inches.  They  are  to  be  moulded  and  capped,  and  the  post  panelled 
as  per  drawings.  The  rail  is  to  be  3J  inches  in  width,  and  of  a  satisfactory  pat- 
tern. The  posts,  rails,  and  newels  are  to  be  of  thoroughly-seasoned  black  walnut ; 
and  the  rails  are  to  be  not  less  than  3  feet  high.  The  stairs  to  the  cellar  are  to  be 
framed  with  plank  stringers,  and  to  be  finished  with  planed  pine-plank  risers,  and 
hard-pine  treads,  and  plank  hand-rails  and  supporters. 

Dado  and  Inside  Finish.  —  The  walls  of  the  entries  throughout  the  four  fin- 
ished stories,  and  of  the  kitchens  and  water-closets  throughout  the  building,  are  to 
be  dadoed  to  the  height  of  3^  feet  above  the  floor  with  narrow  matched  and  beaded 
white-pine  sheathing  finished  with  a  moulded  capping  of  the  form  of  the  stool 
nosing. 

The  walls  of  the  parlors  and  bedrooms  are  to  have  moulded  bases  10  inches 
high,  and  1^  inches  thick.  The  other  walls  are  to  have  levelled  bases  8  inches 
high,  and  %  of  an  inch  thick. 

The  water-closets  are  to  be  finished  off  with  black-walnut  stock,  the  covers  and 
seats  being  hung  to  raise,  and  all  woodwork  being  put  up  with  brass  screws.  Ven- 
tilating boxes  or  flues  of  brick  are  to  be  made  for  the  water-closets  where  indicated 
by  the  drawings,  carried  out  through  the  roof,  and  finished  in  a  neat  and  durable 
manner. 

All  the  inside  woodwork  not  otherwise  specified  is  to  be  wrought  of  thoroughly- 
seasoned,  clear,  white-pine  stock,  free  from  shakes  and  sap,  and  put  in  in  the  best 
and  most  workmanlike  manner. 


SPECIFICATIONS   OF  MATERIALS.  89 

Closets  —  Each  pantry  and  china-closet  is  to  be  fitted  with  a  case  of  four 
drawers  made  in  a  neat  and  substantial  manner.  One  set  of  drawers  in  each 
tenement  to  have  strong  tumbler-locks,  and  each  drawer  to  have  two  drawer- 
pulls. 

These  closets  are  to  have  shelves  and  cupboards  as  directed,  and  each  is  to  have 
cleats  of  cast-iron  (single)  hooks. 

The  bedroom  closets  are  to  have  cleats  of  double  cast-iron  clothes-hooks  placed 
6  inches  apart  on  three  walls  of  each,  and  are  to  be  shelved  round  over  the  clothes- 
hooks.  The  cupboards  above  mentioned  are  to  have  brass  thumb-slides,  strong 
tumbler-locks  and  drawer-pulls. 

Floors.  —  The  floors  to  the  halls  and  corridors  are  to  be  laid  with  thoroughly- 
seasoned,  clear,  hard-pine  stock,  not  exceeding  5  inches  in  width,  laid  close,  and 
thoroughly  nailed  and  smoothed.  All  the  other  floors  in  the  four  finished  stories  are 
to  be  laid  with  thoroughly-seasoned,  kiln-dried,  spruce  floorings,  selected  for  clear- 
ness and  soundness.  They  are  not  to  exceed  6  inches  in  width,  and  are  to  be  laid 
close,  thoroughly  nailed  and  smoothed,  and  put  down  as  soon  as  taken  from  the  dry- 
house. 

Sinks.  —  Each  kitchen  is  to  have  soapstone  set  in  a  pine-plank  frame.  The 
sinks  are  to  be  3  feet  long,  and  1  foot  high,  and  18  inches  wide  inside,  and  are  to 
be  finished  beneath  in  a  neat  and  durable  manner,  with  cupboards.  They  are  to 
be  backed  up  with  pine,  and  fitted  to  receive  the  plumbing.  Each  sink  is  to  have 
a  composition  cesspool. 

Coal-Bins.  —  There  are  to  be  coal-bins  finished  off  in  the  cellars,  one  for  each 
tenement.  Each  bin  is  to  be  fitted  inside  the  door  with  two  separate  compartments 
capable  of  holding  1  ton  of  coal  to  each  compartment,  and  with  another  to  take 
2  barrels  of  kindlings.  The  exterior  woodwork  is  to  be  of  pine,  mill-planed,  and  the 
interior  partitions  of  spruce ;  these  latter  being  fitted  with  sliding  gates,  and  box- 
ings around  them  to  keep  the  coal  from  the  floor.  All  the  above  work  is  to  be  done 
in  the  most  thorough  and  workmanlike  manner. 

Bells.  —  The  outside  door  to  each  tenement  is  to  be  fitted  with  a  bell  leading 
to  the  kitchen.  It  is  to  have  a  handle  to  correspond  with  the  door-knobs.  Each 
tenement  is  to  have  a  bell  to  the  porter's  room,  fitted  with  a  bronze  slide.  All  the 
above  are  to  be  gong-bells  with  tubed  wires,  and  put  in  the  most  perfect  manner. 


90  CONSEDEEATIOH. 


CHAPTER    VII. 


SECTION  I. 
THE  NEED  OF  A  CONSIDERATION. 

IT  is  an  ancient  and  well-established  rule  of  the  common  law 
prevailing  in  this  country,  that  no  promise  can  be  enforced  at  law, 
unless  it  rests  upon  a  consideration  ;  by  which  word  is  meant  a  cause 
or  reason  for  the  promise.  If  it  do  not,  it  is  called  a  naked  bargain, 
and  the  promisor,  even  if  he  admits  his  promise,  is  under  no  legal 
obligation  to  perform  a  promise  that  he  made  without  a  considera- 
tion. 

There  are  two  exceptions  to  this  rule.  One  is  when  the  promise 
is  made  by  a  sealed  instrument,  or  deed  ;  (every  written  instrument 
which  is  sealed  is  a  deed.)  Here  the  law  is  said  to  imply  a  con- 
sideration ;  the  meaning  of  which  is  that  it  does  not  require  that 
any  consideration  should  be  proved.  The  seal  itself  is  said  to  be  a 
consideration,  or  to  import  a  consideration. 

The  second  exception  relates  to  negotiable  paper  ;  and  is  an 
instance  in  which  the  law-merchant  has  materially  qualified  the 
common  law.  We  shall  speak  more  fully  of  this  exception  when  we 
treat  of  negotiable  paper. 

The  word  "  consideration,"  as  it  is  used  in  this  rule,  has  a  peculiar 
and  technical  meaning.  It  denotes  some  substantial  cause  for  the 
promise.  This  cause  must  be  one  of  two  things  ;  either  a  benefit  to 
the  promisor,  or  else  an  injury  or  loss  to  the  promisee  sustained  by 
him  at  the  instance  and  request  of  the  promisor.  Thus,  if  A  promises 
B  to  pay  him  a  thousand  dollars  in  three  months,  and  even  promises 
this  in  writing,  the  promise  is  worthless  in  law,  if  A  makes  it  as  a 
merely  voluntary  promise,  without  a  consideration.  But  if  B,  or 
anybody  for  him,  gives  to  A  to-day  a  thousand  dollars  in  goods  or 


A  SUFFICIENT  CONSIDERATION.  91 

mouey,  and  this  was  the  ground  and  cause  of  the  promise,  then  it  is 
enforceable.  And  if  A  got  nothing  for  his  promise,  but  B,  at  the 
request  of  A.  gave  the  same  goods  or  money  to  C,  this  would  be  an 
equally  good  consideration,  and  the  promise  to  pay  B  would  be 
equally  valid  in  law. 

This  requirement  of  a  consideration  sometimes  operates  harshly 
and  unjustly,  and  permits  promisors  to  break  their  word  under  cir- 
cumstances calling  strongly  for  its  fulfilment.  Courts  have  been  led, 
perhaps,  by  this,  to  say  that  the  consideration  is  sufficient  if  it  be  a 
substantial  one,  although  it  be  not  an  adequate  one.  This  is  the 
unquestionable  rule  now,  and  it  is  sometimes  carried  very  far.  In 
one  case  an  American  court  refused  to  inquire  into  the  adequacy  of 
the  consideration,  —  or  whether  it  was  equal  to  the  promise  made 
upon  it,  —  and  said,  if  there  was  the  smallest  spark  of  consideration 
it  was  enough,  if  the  contract  was  fairly  made  with  a  full  under- 
standing of  all  the  material  facts.  Still,  there  must  be  some  con- 
sideration. 


SECTION  n. 

WHAT  IS  A  SUFFICIENT  CONSIDERATION. 

THE  law  detests  litigation ;  at  least  courts  say  so  ;  and  therefore 
they  consider  any  thing  a  sufficient  consideration  which  arrests  and 
suspends  or  terminates  litigation.  Thus  the  compromise,  or  for- 
bearance, or  mutual  reference  to  arbitration,  or  any  similar  settle- 
ment, of  a  suit,  or  of  a  claim,  is  a  good  consideration  for  a  promise 
founded  upon  it.  And  it  is  no  defence  to  a  suit  on  this  promise,  to 
show  that  the  claim  or  suit  thus  disposed  of  would  probably  have 
been  found  to  have  no  foundation  or  substance.  If  there  be  an 
honest  claim,  which  he  who  advances  it  believes  to  be  well  grounded, 
and  which  within  a  rational  possibility  may  be  so,  this  is  enough  ; 
the  court  will  not  go  on  and  try  the  validity  of  -the  claim  or  of 
the  suit  in  order  to  test  the  validity  of  a  promise  which  rests  upon 
its  settlement ;  for  the  very  purpose  for  which  it  favors  this 
settlement  is  the  avoidance  of  all  necessity  of  investigating  the 
claim  by  litigation.  Bat  for  reasons  of  public  policy,  no  promise 


92  CONSIDEKATION. 

can  be  enforced  of  which  the  consideration  was  the  discontinuance 
of  criminal  proceedings ;  or  any  conduct  by  which  public  interests 
are  harmed,  as,  for  example,  the  procurement  of  the  passage  of  a 
law  by  corrupt  means. 

If  any  work  or  service  is  rendered  to  one,  or  for  one,  and  he 
requested  the  same,  it  is  a  good  consideration  for  a  promise  of  pay- 
ment ;  and  if  he  makes  no  promise,  the  law  will  imply  the  promise, 
that  is,  will  suppose  that  he  has  made  it,  and  will  not  permit  him  to 
deny  it.  The  rule  is  the  same  as  to  payment  for  goods,  or  property 
of  any  kind,  delivered  to  any  one  at  his  request. 

No  person  can  make  another  his  debtor  against  that  other's  will, 
by  a  voluntary  offer  of  work,  or  service,  or  money,  or  goods.  But 
if  that  other  accept  what  is  thus  offered,  and  retain  the  benefit  of  it, 
the  law  will,  generally,  imply  or  presume  that  it  was  offered  at  the 
request  of  that  other  party,  and  will  also  imply  his  promise  to  pay 
for  it,  and  will  enforce  the  promise ;  unless  it  is  apparent,  or  is 
shown,  that  it  was  offered  and  received  as  a  mere  gift. 

A  promise  is  a  good  consideration  for  a  promise ;  and  it  is  one 
which  frequently  occurs  in  fact. 

If  A  says  to  B,  "  If  you  will  deliver  goods  to  C,  I  will  pay  for 
them,"  although  there  is  no  obligation  upon  B  to  deliver  the 
goods,  if  he  does  deliver  them,  he  furnishes  a  consideration  for  the 
agreement,  and  may  enforce  it  against  A. 

An  agreement  by  two  or  more  parties  to  refer  disputes  or  claims 
between  them  to  arbitration,  is  not  binding  upon  any  of  the  parties 
unless  all  have  entered  into  it. 

The  principle,  that  a  promise  is  a  good  consideration  for  a  prom- 
ise, has  been  sometimes  applied  to  subscription-papers ;  all  who 
sign  them  being  held  on  the  ground  that  the  promise  of  each  is  a 
good  consideration  for  the  promises  of  the  rest.  The  law  on  the 
subject  of  these  subscription-papers,  and  of  all  voluntary  promises 
of  contribution,  is  substantially  this :  no  such  promises  are  bind- 
ing, unless  something  is  paid  for  them,  or  unless  some  party  for 
whose  benefit  they  are  made,  —  and  this  party  may  be  one  or 
more  of  the  subscribers,  —  at  the  request,  express  or  implied,  of 
the  promisors,  and  on  the  faith  of  the  subscriptions,  incurs  actual 
expense  or  loss,  or  enters  into  valid  contracts  with  other  parties 


AN  ILLEGAL  CONSIDERATION.  93 

which  will  occasion  expense  or  loss.  As  the  objection  to  the?e 
promises  or  the  doubt  about  them,  comes  from  the  want  of  con- 
sideration, it  may  be  cured  by  a  seal  to  each  name,  or  by  one  seal 
which  all  the  parties  consider  the  seal  of  each. 

It  is  to  be  regretted  that  the  law  does  not  regard  a  merely  moral 
consideration  as  a  sufficient  legal  consideration  ;  but  so  it  is.  Thus, 
it  has  been  held  in  this  country,  that  a  note  given  by  a  father  to  a 
party  who  had  given  needful  medicines,  food,  and  shelter  to  his  sick 
son,  who  was  of  full  age,  was  void  in  law,  because  there  was  no 
legal  consideration.  And  the  same  doctrine  was  applied  where  a 
son  made  a  similar  promise  for  food  and  support  to  his  aged  father. 
If,  in  either  case,  the  promise  had  been  made  before  the  food  or 
other  articles  were  supplied,  or  even  a  request  made  before  the  sup- 
ply, then  the  supply  of  the  food  and  support  would  have  been  a 
good  consideration.  But  they  had  all  been  supplied  before  any 
request  or  promise,  and  nothing  was  left  but  the  moral  obligation 
of  a  father  to  compensate  one  who  had  supported  his  son,  or  of  a 
son  to  support  his  father  ;  and  this  the  law  does  not  deem  sufficient 
to  make  even  an  express  promise  enforceable  at  law. 


SECTION  m. 

AN  LLLEGAL  CONSIDERATION. 

IP  the  whole  of  a  consideration,  or  if  any  part  of  the  considera 
tion  of  an  entire  and  indivisible  promise,  be  illegal,  the  promise 
founded  upon  it  is  void.  Thus,  where  a  note  was  given  in  part  for 
the  compounding  of  penalties  and  suppressing  of  criminal  prosecu- 
tions, it  was  held  to  be  wholly  void  and  uncollectable.  And  where 
a  part  of  the  consideration  of  a  note  was  spirituous  liquors,  sold  by 
the  payee  in  violation  of  a  Statute,  such  note  was  held  to  be 
wholly  void.  But  if  the  consideration  consists  of  separable  parts, 
and  the  promise  consists  of  corresponding  separable  parts,  which 
can  be  apportioned  and  applied,  part  to  part,  then  each  illegality 
will  affect  only  the  promise  resting  on  it ;  for  in  fact  there  are 
many  considerations  and  many  promises. 


94  CONSIDERATION. 

If  the  consideration  be  entire  and  wholly  legal,  and  the  promise 
consists  of  separable  parts,  one  legal  and  the  other  illegal,  the 
promisee  can  enforce  that  part  which  is  legal. 


SECTION  IV. 

AN  IMPOSSIBLE  CONSIDERATION. 

No  contract  or  promise  can  be  enforced  by  him  who  knew  that 
the  performance  of  it  was  wholly  impossible  ;  and  therefore  a  con- 
sideration which  is  obviously  and  certainly  impossible  is  not  sufficient 
in  law  to  sustain  a  promise.  But  if  one  makes  a  promise,  he  can- 
not always  defend  himself  when  sued  for  non-performance  by 
showing  that  performance  was  impossible ;  for  it  may  be  his  own 
fault,  or  his  personal  misfortune,  that  he  cannot  perform  it.  He 
had  no  right  to  make  such  a  promise,  and  must  answer  in  dam- 
ages ;  or  if  he  had  a  right  to  make  it  in  the  expectation  of  perform- 
ance, and  this  has  become  impossible  subsequently,  —  as  by  loss  of 
property,  for  example,  —  this  is  his  misfortune,  and  no  answer  to  a 
suit  on  the  promise.  There  are,  however,  obviously,  promises  or 
contracts,  which,  from  their  very  nature,  must  be  construed  as  if 
the  promisor  had  said,  "I  will  do  so  and  so,  if  I  can."  For 
example,  if  A  promises  to  work  for  B  one  year,  at  $20  a  month, 
and  at  the  end  of  six  months  is  wholly  disabled  by  sickness,  he  is 
not  liable  to  an  action  by  B  for  breach  of  his  contract ;  and  he  can 
recover  his  pay  for  the  time  that  he  has  spent  in  B's  service.  A 
mere  want  of  money,  which  makes  a  pecuniary  impossibility,  is  not 
regarded  by  the  law  as  a  legal  impossibility. 


SECTION  V. 

FAILURE  OP  CONSIDERATION. 

IF  a  promise  be  made  upon  a  consideration  which  is  apparently 
valuable  and  sufficient,  but  which  turns  out  to  be  nothing ;  or  if 
the  consideration  was  originally  good,  but  becomes  wholly  valueless 


FAILURE  OF  CONSIDERATION.  95 

% 

before  part  performance  on  either  side,  there  is  an  end  of  the  con- 
tract, and  the  promise  cannot  be  enforced.  And  if  money  were 
paid  on  such  a  consideration,  it  can  be  recovered  back.  But  only 
the  sum  paid  can  be  so  recovered,  without  any  increase  or  addition 
as  compensation  for  the  plaintiff's  loss  and  disappointment,  unless 
there  were  fraud  or  oppression. 

If  the  failure  of  consideration  be  partial  only,  leaving  a  substan- 
tial, though  far  less  valuable,  consideration  behind,  this  may  still  be 
a  sufficient  foundation  for  the  promise,  if  that  be  entire.  The 
promisor  may  then  be  sued  on  the  promise ;  but  he  will  then  be 
entitled,  by  deduction,  set-off,  or  in  some  other  proper  way,  to  due 
allowance  or  indemnity  for  whatever  loss  he  may  sustain  as  to  the 
other  parts  of  the  bargain,  or  as  to  the  whole  transaction,  from 
the  partial  failure  of  the  consideration.  Thus,  if  he  promised  so 
much  money  for  work  done  in  such  a  way,  or  as  the  price  of  a  thing 
to  be  made  and  sold  to  him,  if  no  work  is  done,  or  the  thing  is  not 
made  or  sold,  there  is  an  end  of  the  promise,  because  the  considera- 
tion has  failed.  But  if  the  work  was  done,  but  not  as  it  should 
have  been,  or  the  thing  made  and  sold,  but  not  what  it  should  have 
been,  and  the  promisor  accepted  the  work  or  the  thing,  he  may  now 
show  that  the  consideration  for  his  promise  has  partially  failed,  and 
may  have  a  proportionate  reduction  in  his  promise,  or  in  the  amount 
he  must  pay.  And  if  the  promise  be  itself  separable  into  parts, 
and  a  distinct  part  or  proportion  of  the  consideration  failed,  to 
which  part  some  distinct  part  or  proportion  of  the  promise  could  be 
applied,  that  part  of  the  promise  cannot  be  enforced,  although  the 
residue  of  the  promise  may  be. 

If  A  agrees  with  B  to  work  for  him  one  year,  or  any  stated  time, 
for  so  much  a  month,  or  so  much  for  the  whole  time,  and,  after 
working  a  part  of  the  time,  leaves  B  without  good  cause,  it  is  the 
ancient  and  still  prevailing  rule,  that  A  can  recover  nothing  in  any 
form  or  way.  It  has,  however,  been  held  in  New  Hampshire,  that 
A  can  still  recover  whatever  his  services  are  worth,  B  having  the 
right  to  set  off  or  deduct  the  amount  of  any  damage  he  may  have 
sustained  from  A's  breach  of  the  contract.  This  view  seems  just 
and  reasonable,  although  it  has  not  been  supported  by  adjudication 
in  other  States.  If  A  agrees  to  sell  to  B  five  hundred  barrels  of 


96  CONSIDERATION. 

• 

flour  at  a  certain  price,  and,  after  delivering  one-half,  refuses  to 
deliver  any  more,  B  can  certainly  return  that  half,  and  pay  A 
nothing.  But  if  B  chooses  to  retain  that  half,  or  if  he  has  so  dis- 
posed of  or  lost  it  that  he  cannot  return  it,  he  must  pay  what  it  is 
worth,  deducting  all  that  he  loses  by  the  breach  of  the  contract. 
And  this  case  we  think  analogous  to  that  of  a  broken  contract  of 
service ;  but  B's  liability  to  pay,  even  in  the  case  supposed  as  to 
goods,  has  been  denied  by  some  courts. 

A  difficulty  sometimes  arises  where  A,  at  the  request  of  B,  under- 
takes to  do  something  for  B,  for  which  he  is  to  be  paid  a  certain 
price ;  and  in  doing  it  he  departs  materially  from  the  directions  of 
B  and  from  his  own  undertaking.  What  are  now  the  rights  of  the 
parties  ?  This  question  arises  most  frequently  in  building-contracts, 
in  which  there  is  usually  some  departure  from  the  original  under- 
taking. The  general  rules  are  these.  If  B  assent  to  the  alteration, 
it  is  the  same  thing  as  if  it  were  a  part  of  the  original  contract. 
He  may  assent  expressly,  by  word  or  in  writing ;  or  constructively, 
by  seeing  the  work,  and  approving  it  as  it  goes  on,  or  being  silent ; 
for  silence  under  such  circumstances  would  generally  be  equivalent 
to  an  approval.  But  if  the  change  be  one  which  B  had  a  right, 
either  from  the  nature  of  the  change,  or  the  appearance  of  it,  or  A's 
language  respecting  it,  to  suppose  would  add  nothing  to  the  cost, 
then  no  promise  to  pay  an  increased  price  would  be  infeired  from 
either  an  express  or  tacit  approval.  Generally,  as  we  have  seen,  if 
A  does  or  makes  what  B  did  not  order  or  request,  B  can  refuse  to 
accept  it,  and,  if  he  refuses,  will  not  then  be  held  to  pay  for  it.  But 
if  he  accepts  it,  he  must  pay  for  it.  This  consequence  results,  how- 
ever, only  from  a  voluntary  acceptance.  For  if  A  choose,  without 
any  request  from  B,  to  add  something  to  B's  house,  or  make  some 
alteration  in  it,  which  being  done  cannot  be  undone  or  taken  away 
without  detriment  to  the  house,  B  may  hold  it,  and  yet  not  be  liable 
to  pay  for  it ;  and  A  has  no  right  to  take  it  away,  iinless  he  can  do 
so  without  inflicting  any  injury  whatever  on  B.  This  rule  woul  I 
apply  whether  the  addition  or  alteration  were  larger  or  smaller. 

It  is  sometimes  provided  in  building-contracts  that  B  shall  pay  for 
no  alteration  or  addition,  unless  previously  ordered  by  him  in  writ- 
ing. But  if  there  be  such  provision,  B  would  be  liable  for  any 


BONDS.  97 

alteration  or  addition  be  ordered  in  any  way,  or  voluntarily  accept- 
ed after  it  was  made,  when  he, could  have  rejected  it. 

So  it  is  sometimes  agreed  that  any  additions  or  alterations  shall 
be  paid  for  at  the  same  rate  as  the  work  contracted  for.  The  law 
would  imply  this  agreement  if  the  parties  did  not  make  it  expressly. 


CHAPTER  VIII. 


A  BARGAIN  where  both  parties  make  promises,  and  come  under 
obligations,  each  to  the  other,  may  be  made  without  seal,  and  would 
then  be  called  an  Agreement.  If  made  under  seal,  it  would  gener- 
ally be  in  the  form  of,  and  bear  the  name  of,  an  Indenture.  If  a 
promise  by  one  only,  is  made  in  writing,  without  a  seal,  it  is  a  sim- 
ple promise  ;  but  if  it  be  made  with  a  seal,  then  it  would  generally 
be  in  the  form  of,  and  bear  the  name  of,  a  BOND. 

The  essentials  of  a  bond  are  only  that  one  party  should  acknowl- 
edge himself  "  held,  bound,  and  obliged  "  unto  another  party,  to 
pay  to  him  a  sum  of  money  ;  and  neither  of  the  words  "  held,"  or 
"  bound,"  or  "  obliged,"  are  strictly  necessary,  although  usual  and 
proper  :  other  words  of  the  same  meaning  will  have  the  same  effect. 
In  such  a  bond,  the  party  bound  is  called  the  obligor,  and  the  party 
to  whom  he  is  bound  is  called  the  obligee.  The  sum  for  which  the 
obligor  is  bound  is  called  the  penal  sum,  or  the  penalty.  Such  a 
bond  is  simply  an  obligation  to  pay  so  much  money.  But  a  bond 
is  not  often  given  only  for  this  purpose.  It  is  usually  intended  to 
be,  in  fact,  an  obligation  to  do  something  else,  on  the  penalty  of 
paying  so  much  money  if  it  be  not  done.  This  something  else  may 
be  any  thing  whatever  which  the  obligor  may  contract  to  do.  All 
this  is  contained  in  an  addition,  which  is  written  on  the  same  paper 
immediately  after  the  bond  itself  j  that  is,  after  the  words  of  obli- 


98  BONDS. 

gatlon.  And  this  is  called  the  "  Condition  "  of  the  bond.  It  begins 
with  saying,  This  bond  is  on  the  condition  following ;  and  then  re- 
cites the  things  which  the  obligor  has  undertaken  to  do;  and  then 
adds,  that  if  all  these  things  are  fully  done  and  performed,  then  the 
bond  shall  be  void  and  of  no  effect,  and  otherwise  shall  remain  in 
full  force. 

The  meaning  and  effect  of  all  this  is,  that  if  the  obligor  fails,  in 
any  respect,  to  do  what  the  condition  recites,  then  he  is  bound  to  pay 
the  money  he  acknowledges  himself,  in  the  bond,  bound  to  pay. 
But  now  the  law  comes  in  to  mitigate  the  severity  of  this  contract. 
And  whatever  be  the  sum  which  the  obligor  acknowledges  himself, 
in  the  bond,  bound  to  pay,  he  is  held  by  the  courts  to  pay  to  the 
obligee  only  that  amount  which  will  be  a  complete  indemnification 
to  him  for  the  damage  he  has  sustained  by  the  failure  of  the  obligor 
to  do  what  the  condition  recites. 

For  example ;  suppose  A  B  makes  a  bond  to  C  D,  acknowledg- 
ing himself  bound  to  C  D  in  the  sum  of  ten  thousand  dollars.  The 
condition  recites  that  one  E  F  has  been  hired  by  C  D  as  his  clerk, 
and  that  A  B  guarantees  the  good  conduct  of  E  F ;  and  if  E  F 
does  all  his  duty  honestly  and  faithfully,  then  the  bond  is  void,  and 
otherwise  remains  in  full  force.  Then  suppose  E  F  to  cheat  C  D 
out  of  some  money.  A  B  is  sued  on  the  bond ;  C  D  cannot  recover 
from  him,  in  any  event,  more  than  the  ten  thousand  dollars ;  and  he 
will  in  fact  recover  from  him  only  so  much  of  this  as  will  make 
good  to  C  D  all  the  loss  he  has  sustained  by  E  F's  misconduct. 
As  the  obligee  can  recover  from  the  obligor  only  actual  compensa- 
tion for  what  he  loses,  it  is  usual,  in  practice,  to  make  the  penal 
sum  in  the  bond  large  enough  to  cover  all  the  loss  that  can  hap- 
pen. 

There  need  be  no  "  consideration,"  alleged  or  asserted  in  the 
bond,  or  proved,  because,  in  the  language  of  the  law,  the  seal  is 
(or  implies)  a  consideration. 

The  following  forms  are  those  of  bonds  frequently  given ;  and 
it  will  be  easy  to  frame  from  some  one  of  them  any  bond  that  is 
wanted  for  other  purposes. 


FORMS  OP  BONDS.  99 

(25.) 
A  Simple  Bond,  without  Condition. 

Know  all  Men  by  these  Presents,  That  I  (the  obligor)  am  held 

and  firmly  bound  unto  (the  obligee)  in  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  be  paid  to  the  said  or  his 

certain  attorney,  or  assigns :  to  which  payment     well  and 

truly  to  be  made,  I  bind  myself,  my  hen's,  executors  and  administrators, 

firmly  by  these  presents.      Sealed-with  my  seal 

Dated  the  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . 

In  Testimony  Whereof,  I  have  set  my  hand  and  seal 

to  this  instrument,  on  the  day  of  ,  in  the  year  of  our 

Lord  eighteen  hundred  and  . 

( Witnesses.)  (Signature.)     (Seal.) 

Executed  and  Delivered  in  Presence  of 


(26.) 

Bond  for  Payment  of  Money,  with  a  Condition  to  that  Effect)  with 
Power  of  Attorney  to  confess  Judgment  annexed. 

Know  all  Men  by  these  Presents,  That  held 

and  firmly  bound  unto  in  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  be  paid  to  the  said  or  his 

certain    attorney,  executors,  administrators  or  assigns:   to  which  payment  well 
and  truly  to  be  made,  heirs,  executors  and  administrators, 

firmly  by  these  presents.     Sealed  with  seal      Dated 

the  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . 

The  Condition  of  this  Obligation  is  such,  That  if  the  above  boundeu 

heirs,  executors,  administrators,  or  any  of  them, 
shall  and  do  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  above-named 

certain  attorney,  executors,  administrators  or  assigns,  the  just 
sum  of  dollars, 

without  any  fraud  or  further  delay,  then  the  above  obligation  to  be  void,  or  else  to 
be  and  remain  hi  full  force  and  virtue. 

(Signature.)     (Seal., 
Sealed  and  Delivered  in  the  Presence  of 


100  BONDS. 

To  ,  JZtq.,  Attorney  of  the  Court  of  Common  Pleas,  at 

in  the  County  of  ,  tn  the  State  of  ,  or  to  any  other  Attorney 

of  the  taid  Court,  or  of  any  other  Court,  there  or  elanskere. 

"Whereas,  (the  obligor)  in  and  by  a  certain  obligation  bearing 

even  date  herewith,  do     stand  bound  unto  (the  obligee)  in  the  sum 

of  lawful  money  of  the  United  States  of  America,  conditioned 

for  the  payment  of 

These  are  to  desire  and  authorize  you,  or  any  of  you,  to  appear  for 
heirs,  executors  or  administrators,  in  the  said  court  or  elsewhere,  in  an  action 
of  debt,  there  or  elsewhere  brought,  or  to  be  brought,  against  me,  or  my  heirs, 
executors  or  administrators,  at  the  suit  of  the  said  (the  obligee) 

executors,  administrators  or  assigns,  on  the  said  obligation,  as  of  any  term  or  time 
past,  present,  or  any  other  subsequent  term  or  tune  there  or  elsewhere  to  be  held, 
and  confess  judgment  thereupon  against  me,  or  my  heirs,  executors  or  adminis- 
trators, for  the  sum  of  lawful  money  of  the  United 
States  of  America,  debt,  besides  costs  of  suit,  in  such  manner  as  to  you  shall  seem 
meet :  and  for  your,  or  any  of  your  so  doing,  this  shall  be  your  sufficient  warrant. 
And  I  do  hereby  for  myself,  and  for  my  heirs,  executors  and  administrators,  remise, 
release,  and  forever  quit  claim  unto  the  said  (the  obligee")  or  his  certain 
attorney,  executors,  administrators  and  assigns,  all  and  all  manner  of  error  and 
errors,  misprisions,  misentries,  defects  and  imperfections  whatever,  in  the  entering 
of  the  said  judgment,  or  any  process  or  proceedings  thereon  or  thereto,  or  anywise 
touching  or  concerning  the  same. 

In  "Witness  "Whereof,  have  hereunto  set  hand  and 

seal    ,  the  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 


(27.) 
Bond  for  Conveyance  of  a  Parcel  of  Land. 

Know  all  Men  by  these  Presents,  That  we, 

as  principals,  and  as  sureties,  are  holden  and  stand  firmly 

bound  unto  in  the  sum  of  dollars,  to 

the  payment  of  which  to  the  said  or  executors, 

administrators,  or  assigns,  we  hereby  jointly  and  severally  bind  ourselves,  our  heirs, 
executors,  and  administrators. 

The  Condition  of  this  obligation  is  such  that  whereas  the  said  obligors 
have  agreed  to  sell  and  convey  unto  the  said  obligee  a  certain  parcel  of  real  estate 


FOBMS  OF  BONDS.  101 

situated  and  bounded  as  follows,  namely : 

The  same  to  be  conveyed  by  a  good  and  sufficient  (warranty  or  other)  deed 

of  the  said  obligors,  conveying  a  good  and  clear  title  to  the  same,  free  from  all 
incumbrances 

And  whereas,  for  such  deed  and  conveyance  it  is  agreed  that  the  said  obligee 
shall  pay  the  sum  of  dollars,  of  which 

dollars  are  to  be  paid  in  cash  upon  the  delivery  of  said  deed,  and  the  remainder  by 
the  note  of  the  said  obligee,  bearing  interest  at  per 

cent  per  annum,  payable  semi-annually,  and  secured  by  a  mortgage 

in  the  usual  form  upon  the  said  premises,  such  note    to  be 
(describe  the  note) 

Now,  therefore,  if  the  said  obligors  shall  upon  tender  by  the  said  obligee  of  the 
aforesaid  cash,  note     ,  and  mortgage  at  any  tune  within  .      from 

this  date,  deliver  unto  the  said  obligee  a  good  and  sufficient  deed  as  aforesaid,  then 
this  obligation  shall  be  void,  otherwise  it  shall  be  and  remain  in  full  force  and 
virtue. 

In  Witness  Whereof,  "We  hereunto  set  our  hands  and  seals  this 
day  of  A.D.,  18      . 

Signed  and  Sealed  in  Presence  of 


(28.) 

Bond  for  a  Deed  of  Land,  with  Acknowledgment  before 
Notary  Public. 

Know  all  Men  by  these  Presents,  That 

of  the  County  of  and  State  of  held  ana 

firmly  bound  to  of  in  the  sum  of 

dollars,  to  be  paid  to  said  his  executors,  administrators  or 

assigns,  to  the  payment  whereof  bind  sel  heirs, 

executors  and  administrators,  firmly  by  these  presents,  sealed  with  seal,  and 

dated  the  day  of  A.D.,  186     . 

The  Condition  of  this  Obligation  is,  That  if  the 

said  upon  payment  of  dollars,  and  interest, 

by  said  within  years  from  this  date,  agreeably 

to  note  of  even  date  herewith,  shall  convey  to  said 

and  heirs  forever,  a  certain  tract  of  land,  situated  in  the  County  of 

and  State  of  to  wit : 

by  a  deed  in  common  form  duly  executed  and  acknowledged, 

and  in  the  mean  tune  shall  permit  said  to  occupy  and  improve 


102  BONDS. 

said  premises  for  own  use,  then  this  obligation  shall  be  void,  otherwise  to 

remain  in  full  force  and  effect. 

Ill  Testimony  "Whereof,  have  hereunto  set  ham* 

and  seal    ,  the  day  and  year  first  above  written. 

(Signature.)     (Seel) 

STATE  OK  7 

[-88. 
COUNTT  OP  ) 

Be  it  Remembered,  That  on  this  day  of 

eighteen  hundred  and  ,  before  me,  the  undersigned,  Notary  Public 

in  and  for  said  County  and  State,  duly  commissioned  and  qualified,  came 
who  to  be  the  same  person    whose  name  subscribed  to 

the  foregoing  instrument  of  writing,  as  party  thereto,  and  acknowledged 

the  same  to  be  act  and  deed  for  the  purpose  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  at  my  office,  in  the  City  of  ,  the  day  and  year  last 

aforesaid. 

Notary  Public. 

(29.) 

Bond  in  another  Form,  for  Conveyance  of  Land,  with 
Acknowledgment. 

Know  all  Men  by  these  Presents,  That 

of                     in  the  County  of                      and  State  of  held  and 

firmly  bound  unto                      of                   in  the  County  of  and  State 

of                      in  the  penal  sum  of  dollars,  for  the 

payment  of  which  sum,  well  and  truly  to  be  made  to  heirs, 
executors  and  administrators,  I  bind  myself,  my  heirs,  executors  and  administrators, 
firmly  by  these  presents. 

Sealed  with  my  seal  and  dated  this  day  of  A.D.  18 

The  Condition  of  the  above  Obligation  is  such,  That  whereas  the 
said  this  day  has  given  the  said 

promissory  note    of  even  date  herewith 

Now,  if,  on  payment  of  the  said  note    being  made  on  or  before  the  time 

shall  become  due,  and  all  taxes  on  the  land  herein- 

after described  having  been  paid  by  the  said  and  no  right  of 

pre-emption  having  been  established  or  claimed  on  the  said  land,  or  any  part  thereof, 
the  said  or  his  legal  representatives,  shall,  whenever  ther  tunto 

afterwards  requested,  execute  and  deliver  to  the  said  or 


FORMS  OF  BONDS.  103 

legal  representatives,  a  good  and  sufficient  deed,  conveying  to  the 

(here  describe  the  land) 

free  and  clear  of  all  incumbrance  then  this  obligation  to  be  null  and 

void,  otherwise  of  full  force  and  effect,  it  being  distinctly  understood  and  agreed  by 
and  between  the  parties  hereto  that  the  time  of  payment  herein  above  fixed 

material  and  of  the  essence  of  this  contract,  and  that  in  case  of  failure 
therein,  the  intervention  of  equity  is  forever  barred. 

(Signatures.)    (Seals.) 
Signed,  Sealed  and  Delivered  in  Presence  of 


STATE    OP  ") 

[-88. 

COUNTY  OF  ) 

I,  in  and  for  the  said  county,  in  the  State  aforesaid,  do 

hereby  certify  that  personally  known  to  me  as  the  same  person 

whose  name  subscribed  to  the  above  bond  for  deed,  appeared 
before  me  this  day,  in  person,  and  acknowledged  that  he  signed,  sealed  and  deliv- 

erd  the  said  bond  as  free  and  voluntary  act,  and  for  the  use  and 
purpose  therein  set  forth. 

Given  under  my  hand  and  seal,  this,  day  of 

A.D.  18 

Notary  Public. 


(30.) 

Bond  to  Corporation  for  Payment  of  Money  due  for  Contribution 
to  Capital  Stoc7cr  with  Power  of  Attorney  to  confess  Judgment. 

Know  all  Men  by  these  Presents,  That 

held  and  firmly  bound  unto 

(name  of  the  corporation)  in  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  be  paid  to 

aforesaid,  their  certain  attorney,  successors  or  assigns.     To  which  payment  well 
and  truly  to  be  made,  firmly  by  these  presents. 

Sealed  with  seal    .    Dated  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

The  Condition  of  this  Obligation  is  such,  That  if  the  above  bounden 
heirs,  executors  and  administrators,  or  any  of  them, 
ehall  and  do  well  and  truly  pay,  or  cause  to  be  paid  unto  the  above-named 

their  certain  attorney,  successors  or  assigns,  the  just  sum  $>f 

such  as  abovesaid,  at  any  time  within  years 

from  the  date  hereof,  together  with  lawful  interest  for  the  same,  in  like  money, 


104  BONDS. 

payable  monthly,  on  the  of  each  and  every  month  hereafter,  and  shall 

also  well  and  truly  pay,  or  cause  to  be  paid  unto 
aforesaid,  their  successors  or  assigns,  the  sum  of 

dollars,  on  the  said  of  each  and  every  month  hereafter,  as 

and  for  the  monthly  contribution  on  share      of  the  capital  stock  of 

aforesaid,  now  owned  by  the  said  without 

any  fraud  or  further  delay ;  provided,  however,  and  it  is  hereby  expressly  agreed, 
tiiat  if  at  any  time  default  shall  be  made  hi  the  payment  of  the  said  principal  money 
when  due,  or  of  the  said  interest,  or  the  monthly  contribution  on  said  stock,  for  the 
space  of  after  any  payment  thereof  shall  fall  due,  then  and  in  such 

case,  the  whole  principal  debt  aforesaid  shall,  at  the  option  of 
aforesaid,  their  successors  and  assigns,  immediately  thereupon  become  due,  payable 
and  recoverable,  and  payment  of  said  principal  sum  and  all  interest  thereon,  as 
well  as  any  contribution  on  said  share    of  stock,  then  due,  may 

be  enforced  and  recovered  at  once,  any  thing  hereinbefore  contained  to  the  con- 
trary thereof  notwithstanding.  And  the  said  for 
heirs,  executors,  administrators  and  assigns,  hereby  expressly  waive  and  relinquish 
unto  aforesaid,  their  successors  and  assigns,  all  benefit  that 
may  accrue  to  by  virtue  of  any  and  every  law,  made  or  to  be  made,  to 
exempt  the  premises  described  in  the  indenture  of  mortgage  herewith  given,  or  of 
any  other  premises  whatever,  from  levy  and  sale  under  execution,  or  any  part  of 
the  proceeds  arising  from  the  sale  thereof,  from  the  payment  of  the  moneys  hereby 
secured,  or  any  part  thereof,  then  the  above  obligation  to  be  void,  or  else  to  be  and 
remain  hi  full  force  and  virtue. 

(Signatures.')     (Seals.) 
Executed  and  Delivered  in  Presence  of 

To  •  Esquire,  Attorney  of  the  Court  of  Common  Pleas  at  in 

the  County  of  in  the  State  of  or  to  any  other  Attorney,  or  to  the 

Prothonotary  of  the  said  Court,  or  of  any  other  Court,  there  or  elsewhere. 

Whereas,  in  and  by  a  certain  obligation, 

bearing  even  date  herewith,  do     stand  bound  unto  in  the 

sum  of  lawful  money  of  the  United  States  of  America, 

conditioned  for  the  payment  of  the  just  sum  of  such 

as  abovesaid,  at  any  tune  within  years  from  the  date  thereof,  together 

with  lawful  interest  for  the  same  hi  like  money,  payable  monthly,  on  the 
of  each  and  every  month  thereafter,  and  should  also  well  and  truly  pay  or  cause  to 
be  paid  unto  aforesaid,  their  successors  or  assigns,  the 

sum  of  dollars,  on  the  of  each  and  every  month 

thereafter,  as  and  for  the  monthly  contribution  on  share    of  the 

capital  stock  of  aforesaid,  now  owned  by  the  said 

without  any  fraud  or  further  delay ;  provided,  however,  and  it  is  thereby 
expressly  agreed,  that  if  at  any  time  default  should  be  made  hi  the  payment  of  the 


FORMS  OF  BONDS.  105 

said  principal  money  when  due,  or  of  the  said  interest,  or  the  monthly  contribution 
on  said  stock,  for  the  space  of  after  any  payment  thereof  should 

fall  due,  then  and  in  such  case  the  whole 

principal  debt  aforesaid  should  at  the  option  of  aforesaid, 

their  successors  and  assigns,  immediately  thereupon  become  due,  payable  and  recov- 
erable, and  payment  of  said  principal  sum,  and  all  interest  thereon,  as  well  as  any 
contribution  on  said  share  of  stock  then  due,  might  be 

enforced  and  recovered  at  once,  any  thing  thereinbefore  contained  to  the  contrary 
thereof  notwithstanding.  And  the  said  heirs,  executors, 

administrators  and  assigns,  thereby  expressly  waive  and  relinquish  unto 

aforesaid,  their  successors  and  assigns,  all  benefit  that  might  acrue 
to  by  virtue  of  any  and  every  law,  made  or  to  be  made,  to  exempt  the 

premises  described  in  the  indenture  of  mortgage  therewith  given,  or  of  any  other 
premises  whatever,  from  levy  and  sale  under  execution,  or  any  part  of  the  proceeds 
arising  from  the  sale  thereof,  from  the  payment  of  the  moneys  thereby  secured,  or 
any  part  thereof.  These  are  to  desire  and  authorize  you,  or  any  of  you,  to  appear 
for  heirs,  executors,  or  administrators,  in  the  said 

court  or  elsewhere,  in  an  action  of  debt,  there  or  elsewhere  brought  or  to  be 
brought,  against  heirs,  executors,  or  administrators,  at 

the  suit  of  aforesaid,  their  successors  or  assigns,  on  the  said 

obligation,  as  of  any  term  or  tune  past,  present,  or  any  other  subsequent  term  or 
time,  there  or  elsewhere  to  be  held,  and  confess  or  enter  judgment  thereupon  against 

heirs,  executors,  or  administrators,  for  the  sum  of 
lawful  money  of  the  United  States  of  America,  debt, 

besides  costs  of  suit,  in  such  manner  as  to  you  shall  seem  meet ;  and  for  your  or  any 
of  your  so  doing  this  shall  be  your  sufficient  warrant.  And 

heirs,  executors  and  administrators,  remise,  release,  and  forever  quit  claim,  unto 
aforesaid,  their  certain  attorney,  successors  and  assigns, 

all  and  all  manner  of  error  and  errors,  misprisions,  misentries,  defects  and  imper- 
fections whatever,  in  the  entering  of  the  said  judgment,  or  any  process  or  proceed- 
ings thereon  or  thereto,  or  anywise  touching  or  concerning  the  same. 

In  Witness  "Whereof,  have  hereunto  set  hand    and 

seal    the  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 

(Signatures.')     (Seats.} 

Sealed  and  Delivered  in  Presence  qf 


i06  ASSIGNMENTS. 


CHAPTER    IX. 

.A.  8  S I G- 3V  ME  NTS. 

THE  word  "  assign  "  usually  occurs  in  almost  all  forms  of  transfer 
and  conveyance ;  but  there  are  certain  instruments  to  which  the 
name  of  "Assignment"  is  more  particularly  given.  They  are 
instruments  by  which  other  instruments  or  debts  or  obligations,  as 
bonds,  judgments,  wages,  and  the  like,  are  transferred.  Sometimes 
they  are  written  on  the  backs  of,  or  elsewhere  on  the  same  paper 
with,  the  instruments  to  be  transferred  by  the  assignment.  Some 
of  these,  as  assignments  of  deeds  of  grant  and  conveyance,  of  mort- 
gages, of  leases,  will  be  given  in  the  chapters  which  treat  of  those 
topics.  Here  are  given  such  forms  as  will  enable  one  to  make  an 
assignment  for  any  of  the  purposes  for  which  assignments  are  usually 
made. 

(31.) 

Brief  Form  of  an  Assignment  to  be  indorsed  on  a  Note,  or  any 
Similar  Promise  or  Agreement. 

I  Hereby,  for  value  received,  assign  and  transfer  the  within  -written  (or  the 
above  written)  ,  together  with  all  my  interest  in  and  all  my 

rights  under  the  same,  to  (name  of  the  assignee'). 

(Signature,) 

(32.) 
A  General  Assignment,  with  Power  of  Attorney. 

Know  all  Men  by  these  Presents,  That  I  for 

value  received,  have  sold,  and  by  these  presents  do    grant,  assign  and  convey  unto 

(name  of  the  assignee  and  description  of  the  things  assigned) 

To  Have  and  to  Hold  the  same  unto  the  said 
executors,  administrators  and  assigns  forever,  to  and  for  the  use  of 
hereby  constituting  and  appointing  my  true  and  lawful  attorney 

irrevocable  in  my  name,  place  and  stead,  for  the  purposes  aforesaid,  to  ask,  de- 
mand, sue  for,  attach,  levy,  recover  and  receive  all  such  sum  and  sums  of  money 


FOBMS  OF  ASSIGNMENTS.  107 

which  now  are,  or  may  hereafter  become  due,  owing  and  payable  for,  or  on  account 
of  all  or  any  of  the  accounts,  dues,  debts,  and  demands  above  assigned 
giving  and  granting  unto  the  said  attorney,  full  power  and  authority  to  do  and 
perform  all  and  every  act  and  thing  whatsoever  requisite  and  necessary,  as  fully,  to 
all  intents  and  purposes,  as  might  or  could  do,  if  personally  present,  with  full 

power  of  substitution  and  revocation,  hereby  ratifying  and  confirming  all  that  the 
said  attorney  or  substitute  shall  lawfully  do  or  cause  to  be  done  by  virtue 

hereof. 

In  Witness  Whereof ',  I  have  hereunto  set  my  hand  and  seal  the 
day  of  ,  one  thousand  eight  hundred  and 

(Signature.')     (Seed.) 

Executed  and  Delivered  in  the  Presence  of 


Assignment  of  a  Bond. 

Know  all  Men  by  these  Presents,  That 
in  the  hereunto  annexed  obligation  named,  for  and  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States  of  America,  unto 

well  and  truly  paid  by  at  the  time  of  the  execution 

hereof,  the  receipt  whereof  hereby  acknowledge,  have  assigned,  trans- 

ferred and  set  over,  and  by  these  presents,  do  assign,  transfer  and  set  over  unto 
the  said  (assignee)  his  executors,  administrators  and  assigns,  to  and  for  his  and 
their  only  proper  use  and  behoof,  the  said  hereunto  annexed  obligation,  which  is 
given  and  executed  by  to  bearing  date  the 

day  of  Anno  Domini,  18       ,  to  secure  the  payment  of  the  sum  of 

with  lawful  interest  therein  expressed,  and  all  moneys,  both 

principal  and  interest,  thereon  due  and  payable,  or  hereafter  to  grow  due  and  pay- 
able, with  the  warrant  of  attorney  to  the  said  obligation  annexed :  together  with 
all  rights,  remedies,  incidents  and  appurtenances,  whatsoever  thereunto  belonging, 
or  in  any  wise  appertaining,  and  all  right,  title  and  interest  therein. 

In  Witness  Whereof,  the  said  have  hereunto 

set  hand    and  seal    ,  this  day  of 

Anno  Domini,  one  thousand  eight  hundred  and 

Sealed  and  Delivered  in  the  Presence  of  us, 

(34.) 
Assignment  of  a  Bond,  with  Power  of  Attorney,  and  a  Covenant. 

Know  all  Men  by  these  Presents,  That 

of  the  first  part,  for  and  in  consideration  of  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  in  hand  paid  by 

9 


108  ASSIGNMENTS. 

of  the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  ha  bargained,  sold  and  assigned,  and  by 
these  presents  do  bargain,  sell  and  assign,  unto  the  said  party  of  the  second  part, 
executors,  administrators,  and  assigns,  a  certain  written  bond  or  obligation 
and  conditions  thereof,  bearing  date  the  day  of 

one  thousand  eight  hundred  and  executed  by 

and  all  sum  and  sums  of  money  due,  and  to  grow  due  thereon :  and  the  said  party 
of  the  first  part  do  covenant  with  the  said  party  of  the  second  part,  that  there  is 
now  due  on  the  said  bond  or  obligation,  according  to  the  conditions  thereof,  for 
principal  and  interest,  the  sum  of  and  do  hereby  authorize 

the  said  party  of  the  second  part,  in  name  to  ask,  demand,  sue  for,  recover, 

receive,  and  enjoy,  the  money  due  and  that  may  grow  due  thereon,  as  aforesaid. 

In  Witness  Whereof,  have  hereunto  set  hand    and  seal 

the  day  of  one  thousand  eight  hundred 

and 

Sealed  and  Delivered  in  the  Presence  of 


(35.) 
Assignment  of  a  Judgment,  in  ilie  Form  of  an  Indenture. 

This  Indenture,  Made  the  day  of 

one  thousand  eight  hundred  and  between  (assignor) 

of  the  first  part,  and  (assignee)  of  the  second  part. 

Whereas,  The  said  part    of  the  first  part  one  thousand 

eight  hundred  and  recovered  by  judgment 

hi  the         (name  ofcourf)  against  one  the  sum  of 

Now  this  Indenture  Witnesseth,  That  the  said  part    of  the  first  part, 
hi  consideration  of  to  duly  paid,  ha      sold,  and 

by  these  presents  do  assign,  transfer,  and  set  over  unto  the  said  part  of  the 
second  part,  and  assigns,  the  said  judgment,  and  all  sum  and  sums  of 

money  that  may  be  had  or  obtained  by  means  thereof,  or  on  any  proceedings  to  be 
had  thereupon.  And  the  said  part  of  the  first  part,  do  hereby  constitute  and 
appoint  the  said  part  of  the  second  part,  and  assigns,  true  and 

lawful  attorney,  irrevocable,  with  power  of  substitution  and  revocation  for  the  use, 
and  at  the  proper  costs  and  charges  of  the  said  part  of  the  second  part,  to  ask, 
demand  and  receive,  and  to  sue  out  executions,  and  take  all  lawful  ways  for  the 
recovery  of  the  money  due  or  to  become  due  on  the  said  judgment :  and  on  pay- 
ment to  acknowledge  satisfaction,  or  discharge  the  same.  And  attorneys  one  or 
more  under  for  the  purpose  aforesaid,  to  make  and  substitute, 

and  at  pleasure  to  revoke ;  hereby  ratifying  and  confirming  all  that  said 


FORMS  OP  ASSIGNMENTS.  109 

attorney  or  substitute  shall  lawfully  do  in  the  premises.  And  die  said  part  of 
the  first  part  do  covenant,  that  there  is  now  due  on  the  said  judgment  the  sum 
of  and  that  will  not  collect  or  receive  the  same,  or 

any  part  thereof,  nor  release  or  discharge  the  said  judgment,  but  will  own  and 
allow  all  lawful  proceedings  therein,  the  said  part  of  the  second  part  saving  the 
said  part  of  first  part,  harmless  of  and  from  any  costs  in  the  premises. 

In  Testimony  Whereof,  The  part         of  the  first  part,  ha       hereunto 
set  hand    and  seal    the  day  and  year  first  above  written. 

(Seals.) 

Sealed  and  Delivered  in  the  Presence  of 


(36.) 
Assignment  of  Wages,  with  Power  of  Attorney. 

Know  all  Men  by  these  Presents,  That  I 

of  in  the  County  of  in  consideration  of  to 

me  paid  by  of  the  receipt  whereof  I  do 

hereby  acknowledge,  do  hereby  assign  and  transfer  to  said  all 

claims  and  demands  which  I  now  have,  and  all  which,  at  any  time  between  the  date 
hereof  and  the  day  of  next,  I  may  and  shall 

have  against  for  all  sums  of  money  due,  and  for  all  sums  of  money 

and  demand  which,  at  any  tune  between  the  date  hereof  and  the  said 
day  of  next,  may  and  shall  become  due  to  me,  for  services  as 

to  have  and  to  hold  the  same  to  the  said  his  executors,  admin- 

istrators and  assigns  forever. 

And  I,  do  hereby  constitute  and  appoint  the  said 

and  his  assigns  to  be  my  attorney  irrevocable  in  the  premises,  to  do  and  perform 
all  acts,  matters,  and  things  touching  the  premises,  in  the  like  manner  to  all  intents 
and  purposes  as  I  could  if  personally  present. 

In  Witness  Whereof,  I  have  set  my  hand  and  seal,  this 

day  of  18 

(Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 


110  SALES  OF  PERSONAL  PROPERTY. 

CHAPTER  X. 

OF    PEKSOIVA.3L.    PROPERTY. 


SECTION  I. 
WHAT  CONSTITUTES  A  BALE. 

IT  is  important  to  distinguish  carefully  between  a  sale  and  an 
agreement  for  a  future  sale.  This  distinction  is  sometimes  over- 
looked; and  hence  the  phrase  "an  executory  contract  of  sale,"  that 
is,  a  contract  of  sale  which  is  to  be  executed  hereafter,  has  come  into 
use  ;  but  it  is  not  quite  accurate  to  speak  of  this  as  if  it  were  a  sale. 
Every  actual  sale  is  an  executed  contract,  although  payment  or 
delivery  may  remain  to  be  made.  There  may  be  an  executory 
contract  for  sale,  or  a  bargain  that  a  future  sale  shall  be  made  ; 
but  such  a  bargain  is  not  a  present  sale  ;  nor  does  it  confer  upon 
either  party  the  rights  or  the  obligations  which  grow  out  of  the 
contract  of  sale. 

A  sale  of  goods  is  the  exchange  thereof  for  money.  More  pre- 
cisely, it  is  the  transfer  of  the  property  in  goods  from  a  seller  to  a 
buyer,  for  a  price  paid,  or  to  be  paid,  in  money.  It  differs  from  an 
exchange,  in  law  ;  for  that  is  the  transfer  of  chattels  for  other  chat- 
tels ;  while  a  sale  is  the  transfer  of  chattels  for  money,  which  is  the 
representative  of  all  value. 

Here  we  must  pause  to  speak  of  the  legal  meaning  of  the  word 
"  property."  It  is  seldom  or  never  used  in  the  law  as  it  is  in  com- 
mon conversation,  to  mean  the  things  themselves  which  are  bought, 
or  sold,  or  owned.  Because  in  law  it  means  the  ownership  of  the 
things,  and  not  the  things  themselves. 

If  a  bargain  transfers  the  property  in  (which  means  the  ownership 
of)  the  thing  to  another  person  for  a  price,  it  is  a  sale  ;  and  if  it 
does  not  transfer  the  property,  it  is  not  a  sale  ;  and,  on  the  other 
hand,  if  it  be  not  a  sale,  it  does  not  transfer  the  property.  As  soon  as 


WHAT  CONSTITUTES  A  SALE.  Ill 

a  tiling  is  sold,  the  buyer  owns  it,  wherever  it  may  be.  And  to 
constitute  a  sale  at  common  law,  all  that  is  necessary  is  the  agree- 
ment of  competent  parties  that  the  property  in  (or  ownership  of) 
the  subject-matter  shall  then  pass  from  the  seller  to  the  buyer  for  a 
fixed  price. 

The  sale  is  made  when  the  agreement  is  made.  The  completion 
of  the  sale  does  not  depend  upon  the  delivery  of  the  goods  by  the 
seller,  nor  upon  the  payment  of  the  price  by  the  buyer.  By  the 
mutual  assent  of  the  parties  to  the  terms  of  the  sale,  the  buyer 
acquires  at  once  the  property  and  all  the  rights  and  liabilities  of 
property ;  so  that,  in  case  of  any  loss  or  depreciation  of  the  articles 
purchased,  the  buyer  will  be  the  sufferer  ;  and  he  will  be  the  gainei 
by  any  increase  in  their  value. 

It  is,  however,  a  presumption  of  the  law,  that  the  sale  is  to  be 
immediately  followed  by  payment  and  delivery,  unless  otherwise 
agreed  upon  by  the  parties.  If  therefore  nothing  appears  but  a 
proposal  and  an  acceptance,  and  the  vendee  departs  without  paying 
or  tendering  the  price,  the  vendor  may  elect  to  consider  it  no  sale, 
and  may,  therefore,  if  the  buyer  comes  at  a  later  period  and  offers 
the  price  and  demands  the  goods,  refuse  to  let  him  have  them.  But 
a  credit  may  be  agreed  on  expressly,  and  the  seller  will  be  bound 
by  it ;  and  so  he  will  be  if  the  credit  is  inferred  or  implied  from 
usage  or  from  the  circumstances  of  the  case.  And  if  there  be  a 
delivery  and  acceptance  of  the  goods,  or  a  receipt  by  the  seller  of 
earnest,  or  of  part  payment,  the  legal  inference  is  that  both  parties 
agree  to  hold  themselves  mutually  bound  by  the  bargain.  Then  the 
buyer  has  either  the  credit  .agreed  upon,  or  such  credit  as  from  cus- 
tom or  the  nature  or  circumstances  of  the  case  is  reasonable.  But 
neither  delivery,  nor  earnest,  nor  part  payment,  is  essential  to  the 
completion  of  a  contract  of  sale.  They  only  prevent  the  seller  from 
rescinding  the  contract  of  sale  without  the  consent  of  the  purchaser. 
Their  effect  upon  sales  under  the  provisions  of  the  Statute  of  Frauds 
will  be  considered  in  the  chapter  on  that  subject.  It  may  also  be 
said  that  no  one  can  be  made  to  buy  of  another  without  his  own 
assent.  Thus,  if  A  sends  an  order  to  B  for  goods,  and  C  sends  the 
goods,  he  cannot  sue  for  the  price,  if  A  repudiates  the  sale,  although 
C  had  bought  B's  business. 


112  SALES  OF  PERSONAL  PROPERTY. 

TLe  seller  (if  no  delivery  with  credit  for  the  price  is  agreed  on) 
has  a  right  to  retain  possession  of  the  property  sold  until  the  price 
is  paid.  This  right  is  called  a  lien,  which  means  the  right  of  retain- 
ing possession  of  property  until  some  charge  upon  it,  or  some  claim 
on  account  of  it,  is  satisfied.  It  rests  therefore  on  possession. 
Hence  the  seller  (and  every  other  person  who  has  a  lien)  loses  it  by 
voluntarily  parting  with  the  possession,  or  by  a  delivery  of  the 
goods.  And  it  is  a  delivery  for  this  pupose,  if  he  delivers  a  part 
without  any  purpose  of  severing  that  part  from  the  remainder ;  or 
if  he  make  a  symbolical  delivery  which  vests  this  right  and  power 
of  possession  in  the  buyer,  as  by  the  delivery  of  the  key  of  a  ware- 
house in  which  they  are  locked  up. 

If  the  seller  delivers  the  goods  to  the  buyer,  as  he  thereby  loses 
his  lien,  he  cannot  afterwards,  by  virtue  of  this  lieu,  retake  the 
goods  and  hold  them.  But  if  the  delivery  was  made  with  an  express 
agreement  that  non-payment  of  the  price  should  revest  the  property 
in  the  seller,  this  agreement  may  be  valid,  and  the  seller  can  reclaim 
the  goods  from  the  buyer  if  the  price  be  not  paid. 

If  the  buyer  neglect  or  refuse  to  take  the  goods  and  pay  the  price 
within  a  reasonable  time,  the  seller  may  resell  them  on  notice  to  the 
buyer,  and  look  to  him  for  the  deficiency  by  way  of  damages  for 
the  breach  of  the  contract.  The  seller,  in  making  such  resale,  acts 
as  agent  or  trustee  for  the  buyer ;  and  his  proceedings  will  be  regu- 
lated and  governed  by  the  rules  usually  applicable  to  persons  acting 
in  those  capacities ;  and  the  principal  one  of  these  is,  that  he  will 
be  held  to  due  care  and  diligence,  and  to  perfect  good  faith. 

Certain  consequences  flow  from  the  rules  and  principles  already 
stated,  which  should  be  noticed.  Thus,  if  the  party  to  whom  the 
offer  of  sale  is  made,  accepts  the  offer,  but  still  refuses  or  neglects 
to  pay  the  price,  and  there  are  no  circumstances  indicating  a  credit, 
or  otherwise  justifying  the  refusal  or  neglect,  the  seller  may,  as  we 
have  said,  disregard  the  acceptance  of  his  offer,  and  consider  the 
contract  as  never  made,  or  as  rescinded.  It  would,  however,  bo 
proper  and  prudent  on  the  part  of  the  seller  expressly  to  demand 
payment  of  the  price  before  he  treated  the  sale  as  null ;  and  a  re- 
fusal or  neglect  would  then  give  him  at  once  a  right  to  hold  and 
treat  the  goods  as  his  own.  So,  too,  if  the  seller  unreasonably  neg- 


WHAT  CONSTITUTES  A  SALE.  113 

lected  or  refused  to  deliver  the  goods  sold,  and  especially  if  he 
refused  to  deliver  them,  the  buyer  thereby  acquires  the  right  to 
consider  that  no  sale  was  made,  or  that  it  has  been  avoided  (or 
annulled).  But  neither  party  is  bound  to  exercise  the  right  thus 
acquired  by  the  refusal  or  neglect  of  the  other,  but  may  consider 
the  sale  as  complete  ;  and  the  seller  may  sue  the  buyer  for  non-pay- 
ment, or  the  buyer  may  sue  the  seller  for  non-delivery. 

If  the  seller  has  merely  the  right  of  possession,  as  if  he  hired  the 
goods ;  or  if  he  has  the  possession  only,  as  if  he  stole  them,  or  found 
them ;  he  cannot  sell  them  and  give  good  title  to  the  buyer  against 
the  owner ;  and  the  owner  may  therefore  recover  them  even  from 
an  honest  purchaser  who  was  wholly  ignorant  of  the  defect  in  the 
title  of  him  from  whom  he  bought  them.  This  follows  from  the 
rule  above  stated,  that  only  he  who  has  in  himself  a  right  of  proper- 
ty can  sell  a  chattel,  because  the  sale  must  transfer  the  right  of 
property  from  the  seller  to  the  buyer.  The  only  exception  to  the 
above  rule  is  where  money,  or  negotiable  paper  transferable  by 
delivery  (which  is  considered  as  money),  is  sold  or  paid  away.  In 
either  case,  he  who  takes  it  in  good  faith,  and  for  value,  from  a 
thief  or  finder,  holds  it  by  good  title.  But  if  the  owner  once  sold 
the  thing,  although  he  was  deceived  and  induced  to  part  with  his 
property  through  fraud,  he  cannot  reclaim  it  from  one  who  in  good 
faith  buys  it  from  the  fraudulent  party. 

If  any  thing  remains  to  be  done  by  the  seller,  to  or  in  relation  to 
the  goods  sold,  for  their  ascertainment,  identification,  or  completion, 
the  property  in  the  goods  does  not  pass  until  that  thing  is  done ;  and 
there  is  as  yet  no  completed  sale.  Therefore,  if  there  be  a  bargain 
for  the  sale  of  specific  goods,  but  there  remains  something  material 
which  the  seller  is  to  do  to  them,  and  they  are  casually  burnt  or 
stolen,  the  loss  is  the  seller's,  because  the  property  (or  ownership,) 
had  not  yet  passed  to  the  buyer. 

So,  if  the  goods  are  a  part  of  a  large  quantity,  they  remain  the 
seller's  until  selected  and  separated  ;  and  even  after  that,  until 
recognized  and  accepted  by  the  buyer,  unless  it  is  plain  from  words 
or  circumstances  that  the  selection  and  separation  by  the  buyer  are 
intended  to  be  conclusive  upon  both  parties. 

If  repairing  or  measuring  or  counting  must  be  done  by  the  seller, 


114  SALES  OF  PERSONAL  PROPERTY. 

before  the  goods  are  fitted  for  delivery  or  the  price  can  be  determined 
or  their  quantity  ascertained,  they  remain,  until  this  be  done,  the 
seller's.  And  where  part  is  measured  and  delivered  this  part  passes 
to  the  vendee,  but  the  portion  not  so  set  apart  does  not.  But  if  the 
seller  delivers  them  and  the  buyer  accepts  them,  and  any  of  these 
acts  remain  to  be  done,  these  acts  will  not  be  considered  as  belonging 
to  the  contract  of  sale,  for  that  will  be  regarded  as  completed,  and  the 
ownership  of  the  goods  will  have  passed  to  the  buyer ;  and  these 
acts  will  be  taken  only  to  refer  to  the  adjustment  of  the  final  settle- 
ment as  to  the  price. 

Thus,  a  purchaser  offers  a  nursery-man  a  dollar  apiece  for  two 
hundred  out  of  a  row  of  two  thousand  trees,  which  are  all  alike,  and 
the  offer  is  accepted.  This  is  no  sale,  because  any  two  hundred 
may  be  delivered,  and  therefore  the  property  or  ownership  of  any 
specific  two  hundred  does  not  pass.  But  if  the  purchaser  or  seller 
had  said,  the  first  two  hundred  in  the  row,  or  the  last,  or  every 
third  tree,  or  otherwise  indicated  the  specific  trees,  there  would 
have  been  a  sale,  and  by  the  sale  those  specific  trees  would  have 
become  at  once  the  trees  of  the  buyer.  The  seller  would  dig  up 
and  deliver  them  as  the  buyer's  trees,  and  if  they  were  burned  up 
by  accident  an  hour  after  the  sale,  and  before  digging,  the  buyer 
would  lose  the  trees.  If  not  specified,  however,  even  if  they  were 
paid  for,  they  remain  the  property  of  the  nurseryman,  because,  in- 
stead of  an  actual  sale,  there  is  only  a  bargain  that  he  will  select 
two  hundred  from  the  lot,  and  take  up  and  deliver  them.  And  if 
they  are  destroyed  before  delivery,  this  is  the  loss  of  the  nurseryman. 

Moreover,  it  is  to  be  noticed  that  a  contract  for  a  future  sale,  to 
take  place  either  at  a  future  point  of  time,  or  when  a  certain  event 
happens,  does  not,  when  that  time  arrives,  or  on  the  happening  of  the 
event,  become  of  itself  a  sale,  transferring  the  property.  The  party 
to  whom  the  sale  was  to  be  made  does  not  then  acquire  the  property, 
and  cannot  by  tendering  the  price  acquire  a  right  to  possession  ;  but 
he  may  tender  the  price,  or  whatever  else  would  be  the  fulfilment 
of  his  obligation,  and  then  sue  the  owner  for  his  breach  of  contract, 
if  he  will  not  deliver  the  goods.  But  the  property  in  the  goods 
remains  in  the  original  owner. 

For  the  same  reason  that  the  property  in  the  goods  must  pass  by 


DELIVEKY  AND  ITS  INCIDENTS.  115 

a  sale,  there  can  be  no  actual  sale  of  any  chattel  or  goods  which 
have  no  existence  at  the  time.  It  may,  as  we  have  &een,  be  a  good 
contract  for  a  future  sale,  but  it  is  not  a  present  sale.  Thus,  in 
contracts  for  the  sale  of  articles  yet  to  be  manufactured,  the  subject 
of  the  contract  not  being  in  existence  when  the  parties  enter  into 
their  engagement,  no  property  passes  until  the  chattel  is  in  a  fin- 
ished state,  and  has  been  specifically  appropriated  to  the  person 
giving  the  order,  and  approved  and  accepted  by  him. 

As  there  can  be  no  sale  unless  of  a  specific  thing,  so  there  is  no 
sale  but  for  a  price  which  is  certain,  or  which  is  capable  of  being 
made  certain  by  a  distinct  reference  to  a  certain  standard. 


SECTION  II. 
DEUVEKY  AND   ITS  INCIDENTS. 

WHEN  a  sale  is  effected,  the  buyer  has  an  immediate  right  to  the 
possession  of  the  goods,  as  soon  as  he  pays  or  tenders  the  price ;  or 
at  once,  without  payment,  if  the  sale  be  on  credit.  And  the  seller 
is  bound  to  deliver  the  goods. 

What  is  a  sufficient  delivery  is  sometimes  a  question  of  difficulty. 
In  general,  it  is  sufficient,  if  the  goods  are  placed  in  the  buyer's 
hands  or  his  actual  possession,  or  if  that  is  done  which  is  the  equiva- 
lent of  this  transfer  of  possession.  Some  modes  and  instances  of 
delivery  we  have  already  seen.  We  add,  that  if  the  goods  are 
landed  on  a  wharf  alongside  of  the  ship  which  brings  them,  with 
notice  to  the  buyer,  or  knowledge  on  his  part,  this  may  be  a  suffi- 
cient delivery,  if  usage,  or  the  obvious  nature  of  the  case,  make  it 
equivalent  to  actually  giving  possession.  And  usage  is  of  the  utmost 
importance  in  determining  questions  of  this  kind. 

In  general,  the  rule  may  be  said  to  be,  that  that  is  a  sufficient 
delivery  which  puts  the  goods  within  the  actual  reach  or  power  of 
the  buyer,  with  immediate  notice  to  him,  so  that  there  is  nothing  to 
prevent  him  from  taking  actual  possession. 

When,  from  the  nature  or  situation  of  the  goods,  an  actual  de- 
livery is  difficult  or  impossible,  as  in  case  of  a  quantity  of  timber 


116  SALES  OF  PEESONAL  PEOPEETY. 

floating  in  a  boom,  slight  acts,  as  touching  the  timber,  or  even  going 
near  it  and  pointing  it  out,  are  sufficient  to  constitute  a  delivery,  if 
they  sufficiently  indicate  the  transfer  of  possession.  So  if  the  prop- 
erty which  is  the  subject  of  the  sale  is  at  sea,  the  indorsement  and 
delivery  of  the  bill  of  lading,  or  other  instrument  of  title,  is  sufficient 
to  constitute  a  delivery,  and  by  such  indorsement  and  delivery  oi 
the  bill  of  lading  the  property  in  the  goods  immediately  vests  in  the 
buyer ;  and  he  can  transfer  this  to  one  who  buys  of  him,  by  his  own 
indorsement  and  delivery  of  the  bill  of  lading.  Where  goods  at  sea 
are  sold,  the  seller  should  send  or  deliver  the  bill  of  lading  to  the 
buyer  within  a  reasonable  time,  that  he  may  have  the  means  of 
offering  the  goods  in  the  market.  And  it  has  been  held  that  a 
refusal  of  the  bill  of  lading  authorized  the  buyer  to  rescind  the  salo. 

Until  delivery,  the  seller  is  bound  to  keep  the  goods  with  ordinary 
care,  and  is  liable  for  any  loss  or  injury  arising  from  the  want  of 
such  care  or  of  good  faith.  But  if  he  exercises  ordinary  care  and 
diligence  in  keeping  the  commodity,  he  is  not  liable  for  any  loss  or 
depreciation  of  it,  unless  this  arises  from  some  defect  which  he  has 
warranted  not  to  exist.  Thus,  in  a  case  in  New  York,  A  sold  to  B 
a  certain  quantity  of  beef,  B  paying  the  purchase-money  in  full ;  and 
it  was  agreed  between  them  that  the  beef  should  remain  in  the  cus- 
tody of  A  until  it  should  be  sent  to  another  place.  Some  time  after , 
B  received  a  part,  which  proved  to  be  bad,  arid  the  whole  was  found, 
on  inspection,  to  be  unmerchantable.  The  court  held  that,  as  the 
beef  was  good  at  the  time  of  its  sale,  the  vendee  (or  buyer)  must 
bear  the  loss  of  its  subsequent  deterioration. 

If  the  buyer  lives  at  a  distance  from  the  seller,  the  seller  must 
send  the  goods  in  the  manner  indicated  by  the  buyer.  If  no  direc- 
tions are  given,  he  must  send  them  iii  such  a  way  as  usage,  or  in  the 
absence  of  usage,  as  reasonable  care  would  require.  And  gener- 
ally all  customary  and  proper  precautions  should  be  taken  to  pre- 
vent loss  or  injury  in  the  transit.  If  these  are  taken,  the  goods  are 
sent  at  the  risk  of  the  buyer,  and  the  seller  is  not  responsible  for 
any  loss.  But  he  is  responsible  for  any  loss  or  injury  happening 
through  the  want  of  such  care  or  precaution.  And  if  he  sends 
them  by  his  own  servant,  or  carries  them  himself,  they  are  in  his 
custody,  and,  generally,  at  his  risk,  until  delivery.  But  if  the  buyer 


DELIVERY  AND  ITS  INCIDENTS.  117 

distinctly  indicates  the  way  or  means  by  which  he  wishes  that  the 
goods  should  be  sent  to  him,  as  by  such  a  carrier,  or  such  a  line,  if 
the  seller  complies  with  his  directions,  and  exercises  ordinary  care 
over  the  goods  until  they  are  delivered  to  the  person  or  line  so 
pointed  out,  his  responsibility  ends  with  this  delivery,  in  the  same 
manner  as  it  would  if  he  delivered  the  goods  into  the  hands  of  the 
owner. 

This  question  of  delivery  has  a  very  great  importance  in  another 
point  of  view  ;  and  that  is,  as  it  bears  upon  the  honesty,  and  there- 
fore the  validity,  of  the  transaction.  As  the  owner  of  goods  ought 
to  have  them  in  his  possession,  and  as  a  transfer  of  possession  usual- 
ly does,  and  always  should,  accompany  a  sale,  the  want  of  this  trans- 
fer is  an  indication,  more  or  less  strong,  that  the  sale  is  not  a  real 
one,  but  a  mere  cover.  The  prevailing  rule  may  be  stated  thus. 
Delivery  is  not  essential  to  a  sale  at  common  law  ;  but  if  there  is  no 
delivery,  and  a  third  party,  without  knowledge  of  the  previous  sale, 
purchases  the  same  thing  from  the  seller,  he  gains  an  equally  valid 
title  with  the  first  buyer ;  and  if  he  completes  this  title  by  acquiring 
possession  of  the  thing  before  the  other,  he  can  hold  it  against  the 
other.  So,  also,  unless  delivery  or  possession  accompany  the  trans- 
fer of  the  right  of  property,  the  things  sold  are  subject  to  attach- 
ment by  the  creditors  of  the  seller.  And  if  the  sale  be  completed, 
and  nevertheless  no  change  of  possession  takes  place,  and  there  is  no 
certain  and  adequate  cause  or  justification  of  the  want  or  delay  of 
this  change  of  possession,  the  transaction  will  be  regarded  as  fraudu- 
lent and  void  in  favor  of  a  third  party,  who,  either  by  purchase  or  by 
attachment,  acquires  the  property  in  good  faith,  and  without  a  knowl- 
edge of  the  former  sale.  This  fact,  that  the  thing  sold  remained  in 
the  possession  of  the  seller,  might  be  explained,  and  if  shown  to  bo 
perfectly  consistent  with  honesty,  and  to  have  occurred  for  good  rea- 
sons, and  especially  if  the  delay  in  taking  possession  was  brief,  the 
title  of  the  first  buyer  would  be  respected. 

If  goods  are  sold  in  a  shop  or  store,  separated,  and  weighed  or 
numbered  if  that  be  necessary,  and  put  into  a  parcel,  or  otherwise 
made  ready  for  delivery  to  the  buyer,  in  his  presence,  and  he 
request  the  seller  to  keep  the  goods  for  a  time  for  him,  this  is  so  far 
a  delivery  as  to  vest  the  property  in  the  goods  in  the  buyer,  and  tha 


118  SALES  OF  PERSONAL  PEOPEKTY. 

sellei  becomes  the  bailee  of  the  buyer.  And  if  the  goods  are  lost 
while  thus  in  the  keeping  of  the  seller,  without  his  fault,  it  is  the 
loss  of  the  buyer.  (In  law  the  word  bail  means  "  to  deliver." 
Thus  a  "bailor"  is  one  who  delivers  a  thing  to  another;  the 
"bailee"  is  the  party  to  whom  it  is  delivered;  and  "bailment"  is 
the  delivery.  The  "  bail "  of  a  party  who  is  arrested,  is  he  or  they 
to  whom  the  arrested  person  is  delivered  or  given  up,  on  their  agree- 
ment that  he  shall  be  forthcoming  when  required  by  law.) 

In  a  contract  of  sale  there  is  sometimes  a  clause  providing  that  a 
mistake  in  description,  or  a  deficiency  in  quality  or  quantity,  shall 
not  avoid  the  sale,  but  only  give  the  buyer  a  right  to  deduction 
or  compensation.  But  if  the  mistake  or  defect  be  great  and  sub- 
stantial, and  affects  materially  the  availability  of  the  thing  for  the 
purpose  for  which  it  was  bought,  the  sale  is  nevertheless  void,  for 
the  thing  sold  is  not  that  which  was  to  have  been  sold. 

If  the  buyer  knowingly  receives  goods  so  deficient  or  so  different 
from  what  they  should  have  been  that  he  might  have  refused  them, 
he  will  be  held  to  have  waived  the  objection,  and  to  be  liable  for  the 
whole  price ;  unless  he  can  show  a  good  reason  for  not  returning 
them,  as  in  the  case  of  materials  innocently  used  before  discovery 
of  the  defects,  or  the  like.  Thus,  where  a  man  bought  a  chandelier 
warranted  sufficient  to  light  a  certain  room,  and  kept  it  six  months, 
the  court  did  not  permit  him  to  return  it  and  refuse  payment, 
although  it  was  not  what  it  had  been  warranted  to  be.  Sometimes 
two  or  three  months,  or  even  less,  is  held  too  long  a  keeping  to  per- 
mit a  subsequent  return.  But  though  the  buyer  cannot  return  the 
thing,  yet,  when  the  price  is  demanded,  he  may  set  off  whatever 
damages  he  has  sustained  by  the  seller's  breach  of  contract,  and  the 
seller  can  recover  only  the  value  to  the  buyer  of  the  goods  sold, 
even  if  that  be  nothing.  But  a  long  delay  or  silence  may  imply  a 
waiver  of  even  this  right  on  the  part  of  the  buyer. 

One  who  orders  many  things  at  one  time,  and  by  one  bargain, 
may,  generally,  refuse  to  receive  a  part  without  the  rest ;  but  if  he 
accepts  any  part,  he  severs  that  part  from  the  rest,  and  rebuts  (or 
removes)  the  presumption  that  it  was  an  entire  contract ;  the  buyer 
will  then  be  held  as  having  given  a  separate  order  for  each  thing,  or 
part,  and  as  therefore  bound  to  receive  such  parts  as  are  tendered, 


DELIVERY  AND  ITS  INCIDENTS.  119 

unless  some  distinct  reason  for  refusal  attaches  to  them.  If  many 
several  things  are  bought  at  one  auction,  but  by  different  bids,  and 
especially  if  the  name  of  the  buyer  be  marked  against  each,  there  is 
a  separate  sale  to  him  of  each  one,  and  it  is  independent  of  the 
others ;  so  that  he  must  take  and  pay  for  any  one  or  more,  although 
the  others  are  not  what  they  should  be,  or  cannot  be  had.  If,  how- 
ever, it  could  be  shown  by  the  nature  of  the  case,  or  by  evidence, 
that  the  things  were  so  connected  that  one  was  bought  entirely  for 
the  sake  of  the  other,  he  would  net  be  obliged  to  take  the  one  unless 
he  could  have  the  other.  This  rule  applies  also  when  the  things 
sold  are  lots  of  land.  Indeed,  the  general  rule  may  be  stated  thus. 
The  question  whether  it  is  one  contract,  so  that  the  buyer  shall  not 
be  bound  to  receive  any  part  unless  the  whole  be  tendered  to  him, 
will  be  determined  by  ascertaining  from  all  the  facts  whether  the 
parts  so  belong  together  that  it  may  reasonably  be  supposed  that 
none  would  have  been  purchased  if  the  whole  had  not  been  pur- 
chased, or  if  any  part  could  not  have  been  purchased. 

The  buyer  may  have,  by  the  terms  of  the  bargain,  the  right  of 
redelivery.  For  sales  are  sometimes  made  upon  the  agreement  that 
the  purchaser  may  return  the  goods  within  a  fixed,  or  within  a 
reasonable  time.  He  may  have  this  right  without  any  condition, 
and  then  has  only  to  exercise  it  at  his  discretion.  But  he  may  have 
the  right  to  return  the  thing  bought,  only  if  it  turns  out  to  have,  or 
not  to  have,  certain  qualities ;  or  only  upon  the  happening  of  a 
certain  event.  In  such  case  the  burden  of  proof  is  on  him  to  show 
that  the  circumstances  exist  which  are  necessary  to  give  him  this 
right.  In  either  case  the  property  vests  in  the  buyer  at  once,  as  in 
ordinary  sales  ;  but  subject  to  the  right  of  return  given  him  by  the 
agreement.  If  he  does  not  exercise  his  right  within  the  agreed 
time,  or  within  a  reasonable  time  if  none  be  agreed  upon,  the  right 
is  wholly  lost,  the  sale  becomes  absolute,  and  the  price  of  the  goods 
may  be  recovered  in  an  action  for  goods  sold  and  delivered.  And 
if  during  the  time  the  buyer  so  misuse  the  property  as  to  materially 
impair  its  value,  he  cannot  tender  it  back,  but  is  liable  for  the  price, 


120  SALES  OF  PERSONAL  PROPERTY. 

SECTION  in. 
CONTRACTS   VOLD   FOR   HXEGALITY   OR   FRAUD. 

As  the  law  will  not  compel  or  require  any  one  to  do  that  which 
it  forbids  him  to  do,  no  contract  can  be  enforced  at  law  which  is 
tainted  with  illegality.  It  may,  however,  be  necessary  to  consider 
whether  the  contract  be  entire  or  separable  into  parts,  and  whether 
it  is  wholly  or  partially  illegal.  If  the  whole  consideration,  or  any 
part  of  the  consideration,  be  illegal,  the  promise  founded  upon 
it  is  void,  whether  the  promise  is  legal  or  not.  But  if  the  considera- 
tion is  legal,  and  the  promise  is  in  part  legal  and  in  part  illegal,  it 
is  valid  for  the  legal  part  and  may  be  enforced  for  that  part.  Thus, 
if  a  master  of  a  vessel  agreed  to  smuggle  goods,  and  in  consideration 
of  his  doing  so  the  owner  promised  to  pay.  him  one-fourth  of  his 
profits,  and  also  to  advance  twenty  dollars  a  month  to  his  family 
during  a  certain  time,  the  master  could  enforce  no  part  of  this 
promise,  and  recover  no  damages  for  any  breach  of  it,  because  the 
consideration  is  illegal.  But  if,  for  one  thousand  dollars  paid,  the 
receiver  agreed  to  sell  and  deliver  a  quantity  of  merchandise,  and 
also  to  assist  the  buyer  in  some  contemplated  fraud,  he  would  be 
bound  to  sell  and  deliver  the  goods,  because  the  consideration  was 
legal,  and  this  part  of  the  promise  was  legal,  but  not  to  assist  in  the 
fraud,  because  this  part  of  the  promise  is  illegal.  I  mean  to  say, 
that  if  a  whole  promise,  or  any  part  of  a  promise  that  cannot  be. 
severed  into  substantial  and  independent  parts,  is  illegal,  the  whole 
promise  is  void.  But  if  the  consideration  is  legal,  and  the  promise 
is  legal  in  part  and  illegal  in  part,  and  that  part  of  the  promise 
which  is  legal  can  be  severed  from  that  part  which  is  illegal,  and 
then  be  a  substantial  promise  having  a  value  of  its  own,  this  legal 
part  can  be  enforced.  For  further  remarks  upon  this  subject,  how- 
ever, I  refer  to  the  previous  chapter  on  Consideration. 

Formerly,  an  agreement  to  sell  at  a  future  day  goods  which  the 
promisor  had  not  at  the  time,  and  had  not  contracted  to  buy,  and 
had  no  notice  or  expectation  of  receiving  by  consignment,  was 
considered  open  to  the  objection  that  it  was  merely  a  wager,  and 


CONTEACTS   VOID  FOE  ILLEGALITY  OE  FEATJD.  121 

therefore  void.  But  later  cases  have  admitted  it  to  be  a  valid  con- 
tract. 

We  have  already  said,  in  a  preceding  chapter,  that  fraud  vitiates 
and  avoids  every  contract  and  every  transaction.  Hence,  a  wilfully 
false  representation  by  which  a  sale  is  effected ;  or  a  purchase  of 
goods  with  the  design  of  not  paying  for  them ;  or  hindering  others 
from  bidding  at  auction  by  wrongful  means  ;  or  selling  at  auction, 
and  providing  by-bidders  to  run  the  thing  up  fraudulently ;  or 
selling  "  with  all  faults,"  and  then  purposely  concealing  and  dis- 
guising them,  as  when  a  man  advertised  a  ship  for  sale  at  auction 
"  with  all  faults,"  but  purposely  put  her  in  a  situation  where  an 
important  fault  could  not  be  easily  detected  ;  or  any  similar  act, 
will  avoid  a  sale.  No  title  or  right  passes  by  such  sale  to  the  fraudu- 
lent party ;  but  the  innocent  party,  whether  buyer  or  seller,  may 
waive  the  fraud,  and  insist  that  the  fraudulent  party  shall  not  take 
advantage  of  his  own  fraud  to  avoid  the  sale. 

A  buyer  who  is  imposed  upon  by  a  fraud,  and  therefore  has  a 
ri^'lit  to  annul  the  sale,  must  exercise  this  right  as  soon  as  may  be 
after  discovering  the  fraud.  He  does  not  lose  the  right  necessarily 
by  every  delay,  but  certainly  does  by  any  considerable  and  unex- 
cused  delay. 

A  seller  may  rescind  and  annul  a  sale  if  he  were  induced  to  make 
it  by  fraud.  But  he  may  waive  the  right  and  sue  for  the  price.  If, 
however,  the  fraudulent  buyer  gets  the  goods  on  a  credit,  and  the 
seller  sues  for  the  price  before  the  credit  expires,  this  suit  is  a  con- 
firmation of  the  whole  sale,  including  the  credit ;  or  rather  it  is  an 
entire  waiver  of  his  right  to  aflnul  the  sale,  and  the  suit  cannot  be 
maintained  until  the  credit  has  wholly  expired. 

If  a  party  who  has  been  defrauded  by  any  contract  brings  an 
action  to  enforce  it,  this  is  a  waiver  of  his  right  to  rescind,  and  a 
confirmation  of  the  contract.  Or  if,  with  knowledge  of  the  fraud, 
he  offers  to  perform  the  contract  on  conditions  which  he  had  no 
right  to  exact,  this  has  been  held  so  effectual  a  waiver  of  the  fraud 
that  he  cannot  set  it  up  in  defence,  if  sued  on  the  contract. 


122  SALES  OF  PERSONAL  PROPERTY. 

SECTION   IV. 
SALES   WITH  WARBANTY. 

A  SALE  may  be  with  warranty ;  and  this  may  be  general,  or 
particular  and  limited.  A  general  warranty  does  not  extend  to 
defects  which  are  known  to  the  purchaser ;  or  which  are  open  to 
inspection  and  observation,  unless  the  purchaser  is  at  the  time 
unable  to  discover  them  readily,  and  relies  rather  upon  the 
knowledge  and  warranty  of  the  seller.  A  warranty  may  also  be 
either  express  or  implied.  It  is  not  implied  by  the  law  generally 
merely  from  a  full,  or,  as  it  is  called,  a  sound  price.  The  rule  of 
law,  caveat  emptor  (let  the  buyer  take  care),  prevents  this.  But  this 
rule  never  applies  to  cases  of  fraud.  As  a  general  rule  however, 
mere  silence  on  the  part  of  the  seller  is  not  fraud  ;  but  the  usage 
of  the  trade  will  be  considered,  and  if  that  require  a  declaration  of 
certain  defects  whenever  they  exist,  the  absence  of  such  declaration 
is  a  warranty  against  such  defects.  Mere  declarations  of  opinion 
are  not  a  warranty.  Thus,  in  England,  an  action  was  brought  on  a 
warranty  that  certain  goods  were  fit  for  the  China  market.  The 
plaintiff  produced  a  letter  from  the  defendant,  saying  that  he  had 
goods  fit  for  the  China  market,  which  he  offered  to  sell  cheap.  Bui 
the  court  held  that  such  a  letter  was  not  a  warranty,  but  merely  an 
invitation  to  trade,  it  not  having  any  specific  reference  to  the  good* 
actually  bought  by  the  plaintiff. 

If  these  declarations  are  intended  to  deceive,  and  have  that  effect> 
they  may  avoid  the  sale  for  fraud.  And  affirmations  of  quantity  or 
quality,  which  are  made  pending  the  negotiations  for  sale,  with  a 
view  to  procure  a  sale,  and  have  that  effect,  will  be  regarded  as  a 
warranty ;  thus,  in  New  York,  it  was  held  that  a  representation 
made  by  a  vendor,  upon  a  sale  of  flour  in  barrels,  that  it  was  in 
quality  superfine  or  extra-superfine,  and  worth  a  shilling  a  barrel 
more  than  common,  coupled  with  the  assurance  to  the  buyer's  agent 
that  he  might  rely  upon  such  representation,  was  a  warranty  of  the 
quality  of  the  flour.  So  in  England,  where  upon  the  sale  of  a  horse 
the  vendor  said  to  the  vendee,  "  You  may  depend  upon  it,  the  horse 


SALES  WITH  WARKANTY.  123 

is  perfectly  quiet  and  free  from  vice  ;  "  this  was  held  to  amount  to 
an  express  warranty  that  he  was  quiet  and  free  from  vice. 

Goods  sold  by  sample  are  warranted  by  such  sale  to  conform  to 
the  sample ;  but  there  is  no  warranty  that  the  sample  is  what  it  ap- 
pears to  be.  Thus,  in  England,  there  was  a  sale  of  five  bags  of  hops, 
with  express  warranty  that  the  bulk  answered  the  samples  by  which 
they  were  sold.  The  sale  was  in  January  ;  at  that  time  the  samples 
fairly  answered  to  the  commodity  sold,  and  no  defect  was  at  that 
time  perceptible  to  the  buyer.  In  July  following,  every  bag  was 
found  to  have  become  unmerchantable  and  spoiled,  by  heating, 
caused  probably  by  the  hops  having  been  fraudulently  watered  by 
the  grower,  or  some  other  person,  before  they  were  purchased  by 
the  defendant.  The  seller  knew  nothing  of  this  fact  at  the  time  of 
sale,  and  the  samples  were  as  much  damped  as  the  rest;  and  it  was 
then  impossible  to  detect  it.  It  was  held  by  the  court  that  there 
was  here  no  implied  warranty  that  the  bulk  of  the  commodity  was 
merchantable  at  the  time  of  sale,  although  a  merchantable  price  was 
given. 

A  breach  of  warranty  does  not  always  authorize  the  buyer  to  re- 
turn the  article  sold,  unless  there  be  an  agreement  to  that  effect,  or 
fraud ;  but  only  to  sue  on  the  warranty,  and  recover  damages  for 
the  breach  of  it.  But  if  one  orders  a  thing  for  a  special  purpose 
known  to  the  seller,  he  may  certainly  return  it  if  it  be  unfit  for  that 
purpose,  if  he  does  so  as  soon  as  he  ascertains  its  unfitness. 

The  seller  of  goods  actually  in  his  possession  as  owner  is  held  to 
warrant  his  own  title  by  the  fact  of  the  sale.  But  if  the  property 
be  not  in  the  possession  of  the  vendor,  and  there  be  no  assertion  of 
ownership  by  him,  no  implied  warranty  of  title  arises. 

If  a  thing  is  ordered  for  a  special  purpose,  and  is  supplied,  there 
is  an  implied  warranty  that  it  is  fit  for  that  purpose.  In  one  cas€j 
the  defendant  was  a  dealer  in  ropes,  and  represented  himself  to 
be  a  manufacturer  of  the  article.  The  buyer,  a  wine-merchant, 
applied  to  him  for  a  crane-rope.  The  seller's  foreman  went  to  the 
buyer's  premises,  in  order  to  ascertain  the  dimensions  and  kind  of 
rope  required.  He  examined  the  crane  and  the  old  rope,  and  took 
the  necessary  admeasurements,  and  was  told  that  the  new  rope  was 
wanted  for  the  purpose  of  raising  pipes  of  wine  out  of  the  cellar,  and 

10 


124  SALES  OF  PERSONAL  PROPERTY. 

letting  them  down  into  the  street ;  when  he  informed  the  buyer  that 
a  rope  must  be  made  on  purpose.  The  seller  did  not  make  the  rope 
himself,  but  sent  the  order  to  his  manufacturer,  who  employed  a 
third  person  to  make  it.  It  was  held  that,  as  between  the  parties  to 
the  sale,  there  was  an  implied  warranty  that  the  rope  was  a  fit  and 
proper  one  for  the  purpose  for  which  it  was  ordered.  And  the 
seller  was  held  responsible,  not  only  for  the  rope,  which  broke,  but 
for  a  pipe  of  wine  which  was  thereby  lost. 

This  principle  must  not  be  applied  to  those  cases  where  an  ascer- 
tained article  is  purchased,  although  it  be  intended  for  a  special 
purpose.  For  if  the  thing  itself  is  specifically  selected  and  purchased, 
the  purchaser  takes  upon  himself  the  risk  of  its  effecting  its  purpose. 
This  is  illustrated  in  an  English  case  thus :  "  If  a  man  says  to  an- 
other, '  Sell  me  a  horse  fit  to  carry  me,'  and  the  other  sells  a  horse 
which  he  knows  to  be  unfit  to  ride,  he  will  be  liable  for  the  conse- 
quences ;  but  if  a  man  says, '  Sell  me  that  gray  horse  to  ride,'  and 
the  other  sells  it,  knowing  that  the  buyer  will  not  be  aftle  to  ride  it, 
that  would  not  make  him  liable."  If  he  said,  "  Sell  me  that  gray 
horse  if  he  is  fit  to  ride,"  and  the  seller  sold  it  knowing  he  was  not 
fit,  he  would  be  liable. 

It  has  been  much  discussed  whether  a  bill  of  sale,  describing  the 
article  sold,  amounts  to  a  warranty  that  the  article  conforms  to  the 
description.  It  seems  now  to  be  well  settled  that  it  does.  In  a 
recent  Massachusetts  case,  there  was  a  bill  of  sale  as  follows  :  "  H. 
&  Co.  bought  of  T.  W.  &  Co.  two  cases  of  indigo,  $272."  The  arti- 
cle sold  was  not  indigo,  but  principally  Prussian  blue.  No  fraud 
was  imputed  to  the  seller,  and  the  article  was  so  prepared  as  to  de- 
ceive experienced  and  skilful  dealers  in  indigo.  The  naked  question 
was  presented,  whether  the  bill  of  sale  constituted  a  warranty  that 
the  article  sold  was  indigo.  And  the  court  held  that  it  did.  Here 
the  warranty  implied  by  the  bill  of  sale  was  as  to  the  kind  of  goods. 
In  another  case  the  bill  was,  "  Sold  E.  T.  H.  2,000  gallons  prime 
quality  winter  oil."  The  thing  sold  was  oil,  and  winter  oil ;  but  not 
prime  quality.  And  the  court  held  that  the  bill  of  sale  amounted 
to  a  warranty  that  it  was  of  that  quality.  In  an  English  case,  a 
vessel  was  advertised  for  sale  as  "  copper  fastened ;  "  and  this  was 
held  to  be  a  warranty  that  she  was  so  fastened  according  to  the 
usual  understanding  of  merchants. 


FOEMS  OF  BILLS  OF  SALE.  125 

One  who  sells  provisions  is  always  considered  in  law  as  warrant- 
ing that  they  are  good  and  wholesome. 


(37.) 
Bill  of  Sale  of  Personal  Property. 

Know  all  Men  by  these  Presents,  That  I  (name  of  the  seller) 

in  the  county  of  for  and  in  consideration  of  the  sum  of 

to  in  hand  well  and  truly  paid,  at  or  before  signing,  sealing,  and 

delivery  of  these  presents,  by      (name  of  the  buyer)  the  receipt  whereof  I  the  said 
do  hereby  acknowledge,  have  granted,  bargained,  and  sold, 
and  by  these  presents  do  grant,  bargain,  and  sell  unto  the  said 

To  Have  and  to  Hold  the  said  granted  and  bargained 
unto  the  said  heirs,  executors,  administrators,  and  assigns,  to 

only  proper  use,  benefit,  and  behoof  forever,  and        the  said 
does  vouch  himself  to  be  the  true  and  lawful  owner  of  the  goods  and  effects  hereby 
sold,  and  to  have  in  himself  full  power,  good  right,  and  lawful  authority  to  dispose 
of  the  said  in  manner  as  aforesaid,  and  I  do,  for  my- 

self, my  heirs,  executors,  and  administrators,  hereby  covenant  and  agree  to  warrant 
and  defend  the  said  (the  goods  sold)  unto  the  said 

heirs,  executors,  and  administrators,  and 
assigns,  against  the  lawful  claims  and  demands  of  all  persons  whomsoever : 

In  Witness  "Whereof,  the  said  have  hereunto 

set  hand    and  seal    this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 

Executed  and  Delivered  in  Presence  of 


(38.) 

Bill  of  Sale  of  Personal  Property,  with  a  Condition  to  make  it  a 
Mortgage,  with  Power  of  Sale. 

Know  all  Men  by  these  Presents,  That 

in  consideration  of  paid  by  the  receipt 

whereof  is  hereby  acknowledged,  do  hereby  grant,  sell,  transfer,  and  deliver  unto 
the  said  the  following  goods  and  chattels,  namely :  — 

To  Have  and  to  Hold  all  and  singular  the  said  goods  and  chattels  to 
the  said  and  executors,  administrators,  and  assigns, 

to  their  own  use  and  behoof  forever. 


126  SALES  OF  PERSONAL  PROPERTY. 

And  hereby  covenant  with  the  grantee    that  the 

lawful  owner  of  the  said  goods  and  chattels ;  that  they  are  free  from  all  incum- 
brances,  that  have  good  right  to  sell  the 

same  as  aforesaid ;  and  that  will  warrant  and  defend  the  same  against  the 

lawful  claims  and  demands  of  all  persons. 

Provided  Nevertheless  that  if  the  grantor     ,  or  executors, 

administrators,  or  assigns,  shall  pay  unto  the  grantee    ,  or  executors, 

administrators,  or  assigns  the  sum  of  in  from 

this  date,  with  interest  semi-annually  at  the  rate  of  per  cent  per  annum, 

and  until  such  payment  shall  not  waste  or  destroy  the  same,  nor  suffer  them  or  any 
part  thereof  to  be  attached  on  mesne  process  ;  and  shall  not,  except  with  the  con- 
sent in  writing  of  the  grantee  or  representatives,  attempt  to  sell  or 
to  remove  from  the  same  or  any  part  thereof,  —  then  this  deed,  as 
also  note  of  even  date  herewith,  signed  by  the  said 
whereby  promise  to  pay  to  the  grantee  or  order  the  said  sum  and 
interest  at  the  tunes  aforesaid,  shall  be  void. 

But  upon  any  Default  in  the  performance  of  the  foregoing  condition, 
the  grantee    ,  or  executors,  administrators,  or  assigns,  may  sell  the  said 

goods  and  chattels  by  public  auction,  first  giving  days'  notice  in  writing  of 

the  tune  and  place  of  sale  to  the  grantor  or  representatives.     And  out  of 

the  money  arising  from  such  sale  the  grantee    ,  or  representatives  shall  be 

entitled  to  retain  all  sums  then  secured  by  this  mortgage,  whether  then  or  there- 
after payable,  including  all  costs,  charges,  and  expenses  incurred  or  sustained  by 
them  in  relation  to  the  said  property,  or  to  discharge  any  claims  or  liena 
of  third  persons  affecting  the  same,  rendering  the  surplus,  if  any,  to  the  grantor 
or  executors,  administrators,  or  assigns. 

And  it  is  Agreed  that  the  grantee     ,  or  executors,  administra- 

tors, or  assigns,  or  any  person  or  persons  in  their  behalf,  may  purchase  at  any  sale 
made  as  aforesaid ;  and  that,  until  default  in  the  performance  of  the  condition  of 
this  deed,  the  grantor  and  executors,  administrators,  and  assigns,  may 

retain  possession  of  the  above-mortgaged  property  and  may  use  and  enjoy  the 
same. 

In  Witness  Whereof,  the  said  hereunto  set 

hand    and  seal    and  affix  and  cancel  the  stamp  required  by  law,  this 
day  of  in  the  year  one  thousand  eight  hundred  and 

Signed,  Sealed  and  Delivered  in  Presence  of 


THE   SALE   OP  ONE'S  BUSINESS.  127 

SECTION  V. 
THE    SALE    OF   ONE'S   BUSINESS. 

SUCH  sales  are  not  unfrequent  in  this  country ;  and  the  seller  al- 
ways agrees  and  promises  that  he  will  not  pursue  that  trade,  business, 
or  occupation  again.  There  are  numerous  cases,  both  in  English 
law-books  and  in  our  own,  which  have  arisen  from  bargains  of  this 
kind.  The  law  seems  now  to  be  settled,  that  such  a  contract  is 
wholly  void  and  inoperative,  provided  the  seller  agrees  to  give  up  his 
business  and  never  resume  it  again,  at  any  time  or  anywhere  ;  that  is, 
without  any  limitation  of  space  or  time ;  because  it  is  against  the 
public  interest  that  a  man  should  be  permitted  to  cast  himself  out 
from  his  business  or  trade  for  the  rest  of  his  life.  But  the  contract 
is  good,  if  for  a  fair  consideration  the  seller  agrees  not  to  resume  or 
carry  on  that  business  within  a  certain  time,  or  within  certain  limits. 
"What  these  limits  must  be  is  not  certain.  The  courts  say  they  must 
be  "  reasonable,"  and  made  in  good  faith.  A  contract  not  to  carry 
on  a  business  in  a  certain  town  would  undoubtedly  be  good.  So,  we 
should  say,  would  be  a  bargain  not  to  do  so  within  a  certain  State. 
In  one  case  in  Massachusetts,  a  contract  not  to  use  certain  machines 
in  any  of  the  United  States  except  two  (which  were  Massachusetts 
and  Rhode  Island)  was  held  valid,  all  of  the  States  but  two  being 
considered  as  a  sufficiently  defined  or  limited  place  ;  but  this  was 
unusual.  The  courts  generally  would  sanction  such  a  bargain,  if  it 
were  limited  to  only  a  part  of  the  United  States ;  as  to  all  New 
England,  for  example. 

In  such  a  contract,  it  would  be  better  for  the  parties  to  agree  upon 
the  amount  which  the  seller  should  pay  by  way  of  damages,  if  he 
violated  his  bargain,  because  it  might  be  very  difficult  to  prove 
specific  damages  ;  and  such  a  bargain,  if  it  were  reasonable,  would 
be  enforced  by  law. 

Such  damages,  agreed  on  beforehand,  are  called  liquidated  dam- 
ages. In  all  cases  where  damages  are  demanded,  and  are  not  agreed 
on,  they  are  called  unliquidated  damages,  and  it  is  the  duty  of  the 
jury  to  determine,  from  the  evidence  before  them,  what  damages 
the  injured  party  has  suffered,  and  what  amount  would  indemnify 
him. 


128  STOPPAGE  IN  TKANSITU. 


CHAPTER   XI. 

STOPPAGE    EV    TR-AJVSITTJ. 

HERB  is  an  instance  where  a  Latin  phrase  has  become  English, 
by  general  adoption  and  use.  In  transitu  means  "  in  the  transit," 
and  the  English  phrase  may  just  as  well  be  used  ;  but  the  Latin 
one  is  used'  much  oftener.  What  the  whole  phrase  /Stoppage  in 
transitu  means,  is  this.  A  seller,  who  has  sent  goods  to  a  buyer  at 
a  distance,  and  after  sending  them  learns  that  the  buyer  is  insolvent, 
may  stop  the  goods  at  any  time  before  they  reach  the  buyer.  His 
right  to  do  this  is  called  the  right  of  Stoppage  in  transitu. 

If  the  goods  are  sent  to  pay  a  precedent  and  existing  debt,  they 
are  not  subject  to  this  right. 

The  right  exists  only  upon  actual  insolvency ;  but  this  need  not 
be  formal  insolvency,  or  bankruptcy  at  law ;  an  actual  inability  to 
pay  one's  debts  in  the  usual  way  being  enough.  If  the  seller,  in 
good  faith,  stops  the  goods,  in  a  belief  of  the  buyer's  insolvency, 
the  buyer  may  at  once  defeat  this  stoppage,  and  reclaim  the  goods, 
by  payment  of  the  price.  So  he  may,  by  a  tender  of  adequate 
security,  if  the  sale  be  on  credit. 

The  stoppage  must  be  effected  by  the  seller,  and  evidenced  by 
some  act ;  but  it  is  not  necessary  that  he  should  take  actual  possession 
ojf  the  goods.  If  he  gives  a  distinct  notice  to  the  party  in  possession, 
whether  carrier,  warehouseman,  middleman,  or  whoever  else,  before 
the  goods  reach  the  buyer,  this  is  enough.  But  a  notice  of  stoppage 
in  transitu,  to  be  effectual,  must  be  given  either  to  the  person  who 
has  the  immediate  custody  of  the  goods  ;  or  if  to  the  principal  whose 
servant  has  the  custody,  then  at  such  a  time,  and  under  such  cir- 
cumstances, as  that  he  may,  by  the  exercise  of  reasonable  diligence, 
communicate  it  to  his  servant  in  time  to  prevent  the  delivery  to  the 
consignee. 

Goods  can  be  stopped  only  while  in  transitu;  and  they  are  in 
transitu  only  until  they  come  into  the  possession  of  the  buyer.  Bui 


STOPPAGE  IX  TRANSITTL  129 

this  possession  need  not  be  actual,  a  constructive  possession  b/  the 
buyer  being  sufficient  to  prevent  this  stoppage ;  as  if  the  goods  are 
placed  on  the  wharf  of  the  buyer,  or  on  a  neighboring  wharf  with 
notice  to  him ;  or  in  a  warehouse  with  delivery  of  the  key  to  him, 
or  of  an  order  on  the  warehouse-man. 

But  the  entry  of  the  goods  at  the  custom-house,  without  payment 
of  duties,  does  not  terminate  the  transit.  If  the  buyer  has  demanded 
and  marked  them  at  the  place  where  they  had  arrived  on  the  termina- 
tion of  the  voyage  or  journey,  personally  or  by  his  agent ;  or  if  the 
carrier  still  holds  the  goods,  but  only  as  the  agent  of  the  buyer ;  in 
all  these  cases  the  transit  is  ended.  But  if  the  carrier  holds  them 
by  a  lien  for  his  charges  against  the  buyer,  the  seller  may  pay  these 
charges  and  discharge  the  lien,  and  then  stop  the  goods  in  transitu. 

If  the  buyer  has,  in  good  faith  and  for  value,  sold  the  goods,  "  to 
arrive,"  before  he  has  received  them,  and  indorsed  and  delivered 
the  bill  of  lading,  this  second  purchaser  holds  the  goods  free  from 
the  first  seller's  right  to  stop  them.  But  if  the  goods  and  bill  are 
transferred  only  as  security  for  a  debt  due  from  the  first  purchaser 
to  the  transferee,  the  original  seller  may  stop  the  goods,  and  hold 
them  subject  to  this  security,  and  need  pay  only  the  specific  ad- 
vances made  on  their  credit,  or  on  that  very  bill  of  lading,  and  not 
a  general  indebtedness  of  the  first  purchaser  to  the  second. 

A  seller  who  stops  the  goods  in  transitu  does  not  rescind  the  sale, 
but  holds  the  goods  as  the  property  of  the  buyer ;  and  they  may  be 
redeemed  by  the  buyer  or  his  representatives,  by  paying  the  price 
for  which  they  are  a  security ;  and  if  not  redeemed,  they  become 
the  seller's,  only  in  the  same  way  as  a  pledge  might  become  his ; 
that  is,  he  may  sell  them  at  a  proper  time,  and  in  a  proper  manner, 
and  with  due  notice,  so  that  the  buyer  may  protect  his  interests. 
And  if  the  seller  then  fails  to  obtain  from  them  the  full  price  due, 
he  has  a  claim  for  the  balance  upon  the  buyer.  If  he  gets  more 
than  the  amount  due  to  him,  he  must  pay  over  the  balance  to  the 
buyer  or  his  assignees. 

An  honest  buyer,  apprehending  bankruptcy,  might  wish  to  return 
the  goods  to  their  original  owner ;  and  this  he  could  undoubtedly 
do,  if  they  have  not  become  distinctly  his  property,  and  the  seller 
his  creditor  for  the  price.  But  if  they  have,  the  buyer  has  no 


130  GTJABANTY. 

more  right    to  benefit  this    creditor   by  suJi   an    appropriation 

of  these  goods,  than  any  other  creditor  by  giving  him  any  other 
goods. 


CHAPTER    XII. 


A  GUARANTOR  is  one  who  is  bound  to  another  for  the  fulfilment 
of  a  promise,  or  of  an  engagement,  made  by  a  third  party.  This 
kind  of  contract  is  very  common.  Generally,  it  is  not  negotiable  ; 
that  is,  not  transferable  so  as  to  be  enforced  by  the  transferee  as  if 
it  had  been  given  to  him  by  the  guarantor.  No  special  form  or 
words  are  necessary  to  the  contract  of  guaranty  ;  and  if  the  word 
"  guarantee  "  be  used,  and  the  whole  instrument  contains  all  the 
characteristics  of  a  note  of  hand,  payable  to  order  or  bearer,  then  it 
is  negotiable.  Thus,  in  a  case  in  New  York,  the  instrument  was  as 
follows  :  "  For  and  in  consideration  of  thirty-one  dollars  and  fifty 
cents  received  of  B.  F.  Spencer,  I  hereby  guarantee  the  payment 
and  collection  of  the  within  note  to  him  or  bearer.  Auburn,  Sept. 
25,  1837.  (Signed)  Thomas  Burns."  And  it  was  held  negotiable. 
What  negotiable  means  will  be  more  fully  explained  in  the  chapter 
on  Notes  of  Hand  and  Bills  of  Exchange. 

The  guaranty  may  be  enforced,  although  the  original  debt  cannot  ; 
as,  for  example,  the  guaranty  of  the  promise  of  a  wife  or  an  infant  ; 
and  sometimes  the  guaranty  of  a  debt  is  requested,  and  given,  for 
the  very  reason  that  the  debt  is  not  enforceable  at  law.  But,  gener- 
ally, the  liability  of  the  principal  measures  and  limits  the  liability  of 
the  guarantor.  And  if  the  creditor  agree  that  the  principal  debt 
shall  be  reduced  or  lessened  in  a  certain  proportion,  the  obligation 
of  the  guarantor  is  reduced  by  law  in  an  equal  proportion. 

A  contract  of  guaranty  is  construed  somewhat  strictly.     Thus,  a 


GTJAEANTY.  131 

guaranty  of  the  notes  of  one,  does  not  extend  to  notes  which  he 
gives  jointly  with  another. 

A  guarantor  who  pays  the  debt  of  the  principal  may  demand  from 
his  creditor  the  securities  he  holds,  although  not  an  assignment  of 
the  debt  itself,  or  of  the  note  or  bond  which  declares  the  debt,  for 
that  is  paid  and  discharged.  And  sometimes  the  creditor  will  not 
be  permitted  to  resort  to  the  guarantor,  until  he  has  collected  as 
much  as  he  can  from  these  securities. 

Unless  the  guaranty  is  by  a  sealed  instrument,  there  must  be  a 
consideration  to  support  it.  If  the  original  debt  or  obligation 
rest  upon  a  good  consideration,  this  will  support  the  promise  of 
guaranty,  if  this  promise  was  made  at  the  same  time  with  or  prior  to 
the  original  debt.  But  if  that  debt  or  obligation  be  first  incurred 
and  completed,  before  the  guaranty  is  given,  there  must  be  a  new 
consideration  for  the  promise  to  guarantee  that  debt,  or  the  guar- 
anty is  void.  But  the  consideration  need  not  pass  from  him  who 
receives  the  guaranty  to  him  who  gives  it.  Any  benefit  to  him  for 
whom  the  guaranty  is  given,  or  any  injury  to  him  who  receives  it, 
is  a  sufficient  consideration  if  the  guaranty  be  given  because  of  it. 

A  guaranty  is  not  binding  unless  it  is  accepted,  and  unless  the 
guarantor  has  knowledge  of  this.  But  the  law  presumes  this  accept- 
ance in  general,  when  the  giving  of  the  guaranty  and  any  action  on 
the  faith  of  it,  by  the  party  to  whom  it  is  given,  are  simultaneous. 
In  New  York,  wherever  the  guaranty  is  absolute,  notice  of  its  ac- 
ceptance is  unnecessary,  unless  expressly  or  impliedly  required  by 
the  offer  of  guaranty.  But,  generally,  an  offer  to  guarantee  a  future 
operation,  especially  if  by  letter,  does  not  bind  the  offerer,  unless  he 
has  such  notice  of  the  acceptance  of  his  offer  as  would  give  him  a 
reasonable  opportunity  of  making  himself  safe. 

If  the  liability  of  the  principal  be  materially  varied  by  the  act  of 
the  party  guaranteed,  without  the  consent  of  the  guarantor,  the 
guarantor  is  discharged.  Many  interesting  cases  have  arisen,  which 
involve  this  question.  Thus,  where  a  bond  was  given  conditioned 
for  the  faithful  performance  of  the  duties  of  the  office  of  deputy  col- 
lector of  direct  taxes  for  eight  certain  townships,  and  the  instrument 
of  appointment,  referred  to  in  the  bond,  was  afterwards  altered,  so 
as  to  extend  to  another  township,  without  the  consent  of  the  surety, 


132  GUARANTY. 

the  Supreme  Court  of  the  United  States  held  that  the  surety  was 
discharged  from  his  responsiblity  for  moneys  collected  by  his  princi- 
pal after  the  alteration.  Again,  in  an  English  case,  the  facts  were, 
that,  in  a  bond  by  sureties  for  the  careful  attention  to  business  and 
the  faithful  discharge  of  the  duties  of  an  agent  of  a  bank,  it  was  pro- 
vided "  that  he  should  have  no  other  business  of  any  kind,  nor  be 
connected  in  any  shape  with  any  trade,  manufacture,  or  mercantile 
copartnery,  nor  be  agent  of  any  individual  or  copartnery  in  any  man- 
ner or  way  whatsoever,  nor  be  security  for  any  individual  or  copart- 
nery in  any  manner  or  way  whatsoever."  The  bank  subsequently, 
without  the  knowledge  of  the  sureties,  increased  the  salary  of 
the  agent,  he  undertaking  to  bear  one-fourth  part  of  all  losses 
which  might  be  incurred  by  his  discounts.  It  was  held  that  this 
was  such  an  alteration  of  the  contract,  and  of  the  liability  of  the 
agent,  that  the  sureties  were  discharged,  notwithstanding  that 
the  loss  arose,  not  from  discounts,  but  from  improper  conduct  of 
the  agent. 

The  guarantor  is  also  discharged  if  the  liability  or  obligation  be 
renewed  or  extended  by  law.  As  if  a  bank,  incorporated  for  twenty 
years,  be  renewed  for  ten  more,  and  the  officers  and  business  of  the 
bank  go  on  without  change ;  the  original  sureties  of  the  cashier  are 
not  held  beyond  the  first  term.  So  a  guaranty  to  a  partnership  is 
extinguished  by  a  change  among  the  members,  although  neither  the 
name  nor  the  business  of  the  firm  be  changed.  But  a  guaranty,  by 
express  terms,  may  be  made  to  continue  over  most  changes  of  this 
kind. 

A  specific  guaranty,  for  one  transaction  which  is  not  yet  exhausted, 
is  not  revocable.  If  it  be  a  continuing  or  a  general  guaranty,  it  is 
revocable,  unless  an  express  agreement,  founded  on  a  consideration, 
makes  it  otherwise. 

A  creditor  may  give  his  debtor  some  accommodation  or  indul- 
gence, without  thereby  discharging  his  guarantor.  It  would  seem 
just,  however,  that  he  should  not  be  permitted  to  give  him  any  in- 
dulgence which  would  materially  prejudice  the  guarantor.  Gener- 
ally, a  guarantor  may  always  pay  a  debt,  and  so  acquire  at  once  the 
right  of  proceeding  against  the  party  whose  debt  he  has  paid.  On 
this  ground,  it  has  been  held,  that  where  a  surety  requested  the 


GUARANTY.  133 

creditor  to  proceed  against  the  principal  debtor,  and  the  creditor 
refused  to  do  this,  and  afterwards  the  debtor  became  insolvent  and 
the  surety  was  without  indemnity,  still,  the  surety  (or  guarantor) 
was  not  discharged,  because  he  might  have  paid  the  debt,  and  then 
sued  the  party  whose  debt  he  paid.  In  New  York,  it  seems  to  be 
the  law,  that,  if  the  surety  requests  the  creditor  to  proceed  against 
the  principal  debtor,  and  he  refuses,  and  the  principal  debtor  after- 
wards becomes  insolvent,  the  surety  will  be  discharged.  If,  by  gross 
negligence,  the  creditor  has  lost  his  debt,  and  has  deprived  the 
surety  of  security  or  indemnity,  the  surety  must  be  discharged,  un- 
less he  was  equally  negligent.  If  a  creditor  gives  time  to  his  debtor, 
by  a  binding  agreement  which  will  prevent  a  suit  in  the  mean  time, 
this  undoubtedly  discharges  the  guarantor  (unless  the  surety  con- 
sents to  the  delay)  because  it  deprives  him  of  his  power  of  acquiring 
a  right  of  proceeding  against  the  debtor,  by  paying  the  debt ;  for  the 
debtor  cannot  during  thdt  time  be  sued. 

If  there  be  a  failure  on  the  part  of  the  principal,  and  the  guarantor 
is  looked  to,  he  should  have  reasonable  notice  of  this.  And,  gener- 
ally, any  notice  would  be  reasonable  which  would  be  sufficient  in 
fact  to  prevent  his  suffering  from  the  delay.  And  if  there  be  no 
notice,  and  the  guarantor  has  been  unharmed  thereby,  he  is  not  dis- 
charged. 

If  a  guaranty  purport  to  be  official,  that  is,  if  it  be  made  by  one 
who  claims  to  hold  a  certain  office,  and  to  give  the  promise  of  guar- 
anty only  as  such  officer,  and  not  personally,  the  general  rule  is, 
that  he  is  not  liable  personally,  provided  he  actually  held  that  office 
and  had  a  right  to  give  the  guaranty  officially.  But  he  would  still 
be  held  personally,  if  the  promise  made,  or  the  relations  of  the  par- 
ties indicated  that  credit  was  given  personally  to  the  parties  promis- 
ing, and  not  merely  to  them  in  their  official  capacity ;  or  if  he  had 
no  right  to  give  the  promise  in  his  official  capacity. 

A  guaranty  was  given  for  the  price  of  a  cargo  of  iron ;  and  the 
buyer  bargained  with  the  seller  to  pay  him  more  than  the  fair  price, 
the  excess  to  go  towards  an  old  debt.  The  guaranty  was  held  to  be 
altogether  void,  because  fraudulent ;  and  could  not  be  enforced  even 
for  the  fair  price. 


134  GUABANTY. 

FORMS  OF  GUARANTY. 

(39.) 
Guaranty  to  be  indorsed  on  a  Note. 

For  value  received  I  guarantee  the  due  payment  of  the  within  written  note. 

(Signature.) 


(40.) 
Guaranty  of  a  Note  on  Separate  Paper. 

For  value  received  I  guarantee  the  due  payment  of  a  promissory  not* 

whereby  promises  to  pay  to  , 

dollars,  in  months. 

(Date.)  (Signature.) 


Guaranty  in  Anotlier  Way. 

For  value  received  I  guarantee  that  the  within  (note  or  bill,  or  that  such  a  note 
or  bill,  describing  it)  will  be  collected  and  paid  if  demanded  in  due  course  of  law. 
(Date.)  (Signature.) 

(42.) 
Letter  of  Guaranty. 

Sir,  —  If  you  will  sell  to  Mr.  of  the  goods  he  wishes  to 

buy  (or  the  goods  may  be  described)  to  the  amount  of  (this  may  be 

omitted  if  the  guaranty  is  intended  to  be  of  any  amount),  within  year 

(or  days  or  months,  or  the  time  may  be  omitted  if  it  is  not  intended  to  limit  it)  from 
the  date  hereof,  I,  for  value  received,  hereby  promise  and  guarantee  that  the  price 
thereof  shall  be  duly  paid.  (This  letter  should  also  state  on  what  terms  the  goods 
should  be  sold,  as  to  credit,  delivery,  £fc.,  unless  it  is  intended  to  leave  all  this  to  the 
buyer  and  seller.) 

(Date.)  (Signature.) 

When  goods  or  stocks  or  other  securities  are  given  as  collateral 
security  for  borrowed  money  or  any  other  debt,  an  instrument  is 


FORMS  OF  GUARANTY.  135 

sometimes  given,  the  intention  of  which  is  to  guarantee  that  the 
collaterals  should  be  and  remain  sufficient  to  secure  the  indebted- 
ness. It  may  be  in  one  of  the  following  forms,  as  the  bargain 
requires.  These  are  sometimes  called  "  margin  guaranties." 


(43.) 
Guaranty  with  Collaterals  authorizing  Sale. 

Whereas,  I  (or  we)  have  deposited  with  as  collateral 

security  for  payment  at  maturity  of  the  following  (here  describe  the  debt 

guaranteed) 

Now  this  "Witnesseth,  That  in  the  event  of  the  non-payment  at  maturity 
of  any  or  all  of  these  hereby  authorize  or 

assigns,  to  sell  the  above  (the  collaterals)  at  public  or  private  sale,  or 
at  the  brokers'  board,  without  notice  to  and  apply  proceeds  to  payment 

of  said  and  all  necessary  expenses,  holding  responsible  for  any 

deficiency. 

In  Witness  Whereo£  have  hereunto  set  hand      and 

seal    ,  this  day  of  one  thousand  eight  hundred  and 

(Signature.") 
(Witness.) 


(44.) 

Guaranty  with   Collaterals,  promising  Additional  Security  or 

authorizing  Sale. 

Having"  Borrowed  this  Day  of  (the  sum  borrowed)  on 

the  following  collaterals  (here  describe  the  collaterals). 

I  Hereby  Agree,  in  case  the  market-price  of  the  said  stock  should  fall  at 
any  time  during  the  continuance  of  the  loan  to  an  amount  insufficient  to  cover  the 
sum  loaned,  with  per  cent  margin  added  thereto,  that  hi  such  event  I  will,4 

on  demand,  deposit  additional  security  to  be  approved  by  him,  which  shall  be 
sufficient  to  keep  the  collaterals  thus  deposited,  equal  to  a  sum  per  cent 

above  said  loan,  and  so  as  often  as  said  collaterals  shall  diminish ;  and  that,  in 
default  thereof,  the  said  shall  have  power  to  sell  at  public  or 

private  sale,  without  notice,  all,  or  any  of  the  said  securities  (as  well  as  any  others 
he  may  hold),  to  pay  the  amount  of  the  said  loan,  with  all  interest  and  charges 
thereon,  and  for  so  doing,  I  fully  release  him  of  all  claims,  actions,  and  causes 
thereof. 


136  THE  STATUTE  OF  FRAUDS. 

CHAPTER    XIII. 

"J*H  K    STA.TTJTJE:    OF    FJXJLUD&. 


SECTION  I.  • 

ITS    PURPOSE    AND    GENERAL     PROVISIONS. 

THE  Statute  of  Frauds,  so  called,  was  passed  in  the  29th  year  of 
Charles  II.  (1677)  for  the  purpose  of  preventing  frauds  and  per- 
juries, by  requiring  in  many  cases  written  evidence  of  a  contract. 
In  nearly  all  our  States  a  similar  statute  has  been  enacted.  But 
no  two  of  the  statutes  of  the  different  States  agree  exactly  in  all 
their  provisions.  They  do,  however,  agree  substantially ;  and  we 
shall  give  in  this  chapter  the  prevailing  and  nearly  universal  rules 
for  the  construction  and  application  of  this  statute.  It  is  often  of 
very  great  importance  in  commercial  transactions.  Those  pro- 
visions which  especially  relate  to  business  law  are  contained  in  the 
fourth  and  seventeenth  sections. 

By  the  fourth  section,  it  is  enacted  that  "  no  action  shall  be 
brought  whereby  to  charge  any  executor  or  administrator,  upon  any 
special  promise,  to  answer  damages  out  of  his  own  estate  ;  or 
whereby  to  charge  the  defendant,  upon  any  special  promise,  to 
answer  for  the  debt,  default,  or  miscarriages  of  another  person ; 
or  to  charge  any  person  upon  any  agreement  made  upon  considera- 
tion of  marriage ;  or  any  contract  for  sale  of  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them ;  or  upon  any 
agreement  that  is  not  to  be  performed  within  the  space  of  "one  year 
from  the  making  thereof.'  unless  the  agreement,  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof,  shall 
be  in  -writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
Borne  other  person  thereunto  by  him  lawfully  authorized." 

By  the  seventeenth  section,  it  is  enacted  that "  no  contract  for 
the  sale  of  any  goods,  wares,  and  merchandises,  for  the  price  of 


A  PKOMISE  TO  PAY  THE  DEBT  OF  ANOTHER.       137 

,£10  sterling,  or  upwards,  shall  be  allowed  to  be  good,  except  the 
buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,  or  give  something  in  earnest  to  bind  the  bargain,  or  in 
part  of  payment,  or  that  some  note  or  memorandum  in  writing  of 
the  said  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized." 

The  second  and  fifth  clauses  of  the  fourth  section,  and  the  whole 
of  the  seventeenth,  relate  to  our  present  subject.  The  second 
clause  prevents  an  oral  guaranty  from  being  enforced  at  law  ;  but 
if  money  be  paid  on  one,  it  cannot  be  recovered  back. 


SECTION  n. 

A  PROMISE  TO  PAY  THE  DEBT  OF  ANOTHER. 

IT  is  very  often  difficult  to  say  whether  the  promise  of  one  to  pay 
for  goods  delivered  to  another  is  an  original  promise,  as  to  pay  for 
one's  own  goods,  and  then  it  need  not  be  in  writing,  or  a  promise  to 
pay  the  debt  or  guaranty  the  promise  of  him  to  whom  the  goods 
are  delivered,  and  then  it  must  be  in  writing.  If  it  be  a  promise 
to  pay  the  debt  of  another,  it  is  said  to  be  a  collateral  promise,  and 
not  an  original  promise.  The  question  may  always  be  said  to  be : 
To  whom  did  the  seller  give,  and  was  authorized  to  give,  credit  ?  This 
question  the  jury  will  decide,  upon  consideration  of  all  the  facts, 
under  the  direction  of  the  court.  If  a  seller  sues  one  to  whom  he 
did  not  deliver  the  goods,  on  the  ground  that  this  other  promised 
to  pay  for  them,  then  the  question  is,  Did  this  other  promise  to  pay 
for  them  as  for  his  own  goods  ?  for  then  the  promise  need  not  be  in 
writing.  Or  did  he  promise  to  pay  for  them  as  for  the  goods  of  the 
party  receiving  them  ?  and  then  it  is  a  promise  to  pay  the  debt  of 
another,  and  must  be  in  writing.  If,  on  examination  of  the  books 
of  the  seller,  it  appears  that  he  charged  the  goods  to  the  party  who 
received  them,  it  will  be  difficult,  if  not  impossible,  for  the  seller  to 
maintain  that  he  sold  them  to  the  other  party.  But  if  he  charged 
them  to  this  other,  such  an  entry  would  be  good  evidence,  and,  if 
confirmed  by  circumstances,  strong  evidence  that  this  party  was  the 


138  THE  STATUTE  OP  FRAUDS. 

purchaser.  But  it  cannot  be  conclusive  ;  for  the  party  not  receiv- 
ing the  goods  may  always  prove,  if  he  can,  that  he  was  not  the 
buyer,  and  that  he  promised  only  as  surety  for  the  party  who  was 
the  buyer ;  and,  consequently,  that  his  promise  cannot  be  enforced 
if  not  in  writing.  And,  in  general,  in  determining  this  question, 
the  court  will  always  look  to  the  actual  character  of  the  transac- 
tion, and  the  intention  of  the  parties. 

The  courts,  both  in  England  and  in  America,  have  often  en- 
deavored to  illustrate  this  question.  Thus,  in  an  early  English 
case,  the  court  said :  "  If  two  come  to  a  shop,  and  one  buys,  and 
the  other,  to  gain  him  credit,  promises  the  seller,  '  If  he  does  not 
pay  you,  I  will,'  this  is  a  collateral  undertaking,  and  void,  without 
writing,  by  the  Statute  of  Frauds.  But  if  he  says, '  Let  him  have 
the  goods,  I  will  be  your  paymaster,'  this  is  an  undertaking  as  for 
himself,  and  he  shall  be  intended  to  be  the  very  buyer,  and  the 
other  to  act  but  as  his  servant."  So,  in  a  case  in  Maryland,  the 
court  said :  "  If  B  gives  credit  to  C  for  goods  sold  and  delivered  to 
him,  on  the  promise  of  A  to  *  see  him  paid,'  or  '  to  pay  him  for  them 
if  C  should  not,'  in  that  case  it  is  the  immediate  debt  of  C,  for 
which  an  action  will  lie  against  him,  and  the  promise  of  A  is  a  col- 
lateral undertaking  to  pay  that  debt  [and  must  be  in  writing] ,  ha 
being  only  liable  as  a  surety.  But  where  the  party  undertaken  for 
is  under  no  liability  himself,  the  promise  is  an  original  undertaking 
of  the  party'promising,  and  binding  upon  him  without  being  in 
writing.  Thus,  if  B  furnishes  goods  to  C,  on  the  express  promise 
of  A  to  pay  for  them,  as  if  A  says  to  him, '  Let  C  have  goods  to 
such  an  amount,  and  I  will  pay  you,'  and  the  credit  is  given  to  A, 
in  that  case  C  being  under  no  liability,  there  is  nothing  to  which  the 
promise  of  A  can  be  collateral ;  but  A  being  the  immediate  debtor, 
it  is  his  original  undertaking,  and  not  a  promise  to  answer  for  the 
debt  of  another ; "  and  therefore  need  not  be  in  writing. 

Whenever  the  main  purpose  and  object  of  the  promisor  is  not  to 
answer  for  another,  but  to  subserve  some  purpose  of  his  own,  his 
promise  is  not  within  the  statute,  although  it  may  be  in  form  a 
promise  to  pay  the  debt  of  another,  and  although  the  performance 
of  it  may  incidentally  have  the  effect  of  extinguishing  the  liability 
of  another.  If  an  old  debt  is  extinguished  by  a  new  promise,  this 


AGEEEAIENT  NOT  TO   BE  PEEFOEMED  WITHIN  A  YEAE.      139 

promise  is  considered  as  an  original  one  and  not  within  the  require- 
ment of  the  statute. 

If  there  be  an  oral  promise  to  pay  the  debt  of  another,  and  also 
to  do  some  other  thing,  this  last  can  be  enforced  at  law,  if  this 
other  thing,  and  so  much  of  the  promise  as  relates  to  it,  can  be 
severed  from  the  debt  of  the  other  and  the  promise  relating  to  that 
debt ;  for  although  that  promise  must  be  in  writing,  the  other  may 
be  oral. 


SECTION  m. 

AN  AGREEMENT  NOT  TO  BE  PERFORMED  WITHIN  A  TEAR. 

UNDER  the  fifth  clause  in  the  fourth  section,  it  is  held  that  an 
agreement  which  may  be  performed  within  the  year  is  not  affected  by 
the  statute,  as  the  words,  "  that  is  not  to  be  performed  within  one 
year,"  do  not  apply  to  an  agreement  which,  when  made,  was,  and 
by  the  parties  was  understood  to  be,  fairly  capable  of  complete 
execution  within  a  year,  without  the  intervention  of  extraordinary 
circumstances,  —  although  in  point  of  fact  its  execution  was  extend- 
ed much  beyond  the  year.  So  where  one  agreed  orally,  for  one 
guinea,  to  give  another  a  number  of  guineas  on  the  day  of  his  mar- 
riage, it  was  held  that  this  promise  was  not  within  the  statute,  that 
is,  not  one  which  the  statute  required  to  be  in  writing,  because  he 
might  be  married  within  a  year,  and  the  promisor  was  therefore 
bound  by  it.  So  where  one  agreed  orally  never  to  go  into  the  sta- 
ging business  in  a  certain  place,  as  this  contract  could  last  only  while 
the  promisor  lived,  and  he  might  die  within  a  year,  he  was  held  to 
be  bound  by  it. 


SECTION  IV. 

THE    FORM    AND    SUBJECT-MATTER    OF    THE    AGREEMENT. 

THE  "  agreement "  must  be  in  writing ;  but  generally,  in  this 
country,  the  writing  need  not  contain  or  express  the  consideration, 

which  may  be  proved  otherwise.    Nor  need  it  be  all  on  one  piece 
11 


140  THE  STATUTE  OF  FKATJDS. 

of  paper.  For  it  is  sufficient  if  on  several  pieces,  as  in  several  let- 
ters, which,  however,  relate  to  one  and  the  same  business,  and  may 
fairly  be  read  together  as  the  statement  of  one  transaction.  But  it 
must  appear  from  the  papers  that  they  are  so  connected. 

The  "  signature  "  may  be  in  any  part  of  the  paper,  —  the  begin- 
ning, middle,  or  end,  except  in  those  of  our  States  in  which  the 
statute  has  the  word  "  subscribed  "  instead  of  "  signed  ; "  in  which 
case  it  should  be  in  the  usual  place  at  the  bottom.  If  the  name  and 
the  agreement  be  printed,  it  is  sufficient ;  .hence,  a  printed  shop-bill, 
with  the  name  of  the  seller,  as  usual,  at  the  beginning,  if  delivered 
to  the  buyer,  is  generally  sufficient  to  charge  the  seller  in  an  action 
for  refusing  to  deliver  the  goods. 

Shares  in  railroad  companies,  in  manufacturing  companies,  and, 
generally,  in  all  corporations  and  joint-stock  companies,  are  "  goods, 
wares,  or  merchandises,"  within  the  meaning  of  the  statute,  in  this 
country,  and  an  agreement  for  their  purchase  and  sale  must  there- 
fore be  in  writing. 

It  may  be  further  remarked,  that  the  operation  of  the  statute  has 
been  always  limited  to  such  contracts  as  have  not  been  executed  in 
any  substantial  part,  and  therefore  remain  wholly  executory.  For 
if  they  have  been  executed  substantially  in  good  part,  they  are 
binding,  although  only  oral. 

In  Massachusetts,  the  Statute  of  Frauds  also  provides  (3d  section) 
that  no  action  shall  be  brought  to  charge  any  person  upon,  or  by 
reason  of,  any  representation  or  assurance  made  concerning  the 
character,  conduct,  credit,  ability,  trade,  or  dealings  of  any  other 
person,  unless  it  be  made  in  writing,  and  signed  by  the  party  to  be 
charged.  And  there  are  provisions  substantially  similar  to  this  in 
the  statutes  of  Maine  and  Vermont. 

Instead  of  the  "  £10  "  in  the  seventeenth  section  of  the  English 
Statute,  the  sum  mentioned  in  the  Statutes  of  Frauds  of  the  differ- 
ent States,  is,  generally,  from  thirty  to  fifty  dollars. 


HOW  PAYMENT  MAY  BE  MADE.  141 


CHAPTER    XIV. 


SECTION  I. 
HOW    PAYMENT    MAY    BE    MADE. 

THE  obligations  which  arise  out  of  most  mercantile  contracts  are 
to  be  satisfied  by  payment  of  money.  The  parties  may  always 
agree  to  any  specific  manner  of  payment,  and  then  that  becomes 
obligatory  on  the  creditor  as  well  as  the  debtor.  As,  by  deducting 
the  amount  to  be  paid  from  a  debt  due  to  the  debtor  either  from 
the  creditor  or  from  any  one  else.  Or  the  amount  may  be  made, 
by  agreement,  payable  by  a  bill  or  note.  If  the  debt  is  to  be  paid 
by  a  bill,  it  must  be  such  a  bill  as  is  agreed  upon,  and  this  must  be 
tendered  by  the  debtor.  But  the  word  "  bill "  does  not  necessarily 
mean  an  "  approved  bill ;  "  and  if  this  phrase  be  itself  used,  it 
means  only  a  bill  to  which  there  is  no  reasonable  objection  ;  that  is, 
one  which  ought  to  be  approved. 

In  the  absence  of  any  especial  agreement,  the  only  payment 
known  to  the  law  is  by  cash,  which  the  debtor  must  pay  when  it  is 
due,  or  tender  to  the  creditor. 

The  tender  should,  properly,  be  in  cash,  or  in  bills  made  a  legal 
tender  by  law,  and  must  be  so  if  that  is  required ;  but  a  tender  in 
good  and  current  bank-bills  is  sufficient,  unless  it  be  objected  to 
because  they  are  not  money. 

Generally,  if  the  tender  be  refused  for  any  express  and  specific 
reason,  the  creditor  cannot  afterwards  take  advantage  of  any  infor- 
mality, to  which  he  did  not  object  at  the  time  of  the  tender. 

The  tender  may  be  of  a  larger  sum  than  is  due.  But  a  tender 
of  a  larger  sum,  if  made  with  a  requirement  of  change  or  of  the 
balance,  is  not  good.  Nor  must  it  be  accompanied  with  a  demand  or 
condition  that  any  instrument  or  document  shall  be  delivered ;  nor 


142  PAYMENT  AND  TENDER. 

that  the  sum  tendered  shall  be  received  as  all  that  is  due  ;  nor  that 
a  receipt  in  full  shall  be  given.  But  a  simple  receipt  for  so  much 
money  paid  may  be  demanded.  We  have  already  seen  that,  if  a 
receipt  be  given,  it  is  only  strong  evidence  of  payment,  but  not  con- 
clusive. And  even  if  it  be  "  in  full  of  all  demands,"  it  is  still  open 
to  explanation  or  denial  by  evidence. 

A  lawful  tender,  and  payment  of  the  money  into  court,  is  a  good 
defence  to  an  action  for  the  debt.  But  the  creditor  may  break  down 
this  defence  by  proving,  that,  subsequently  to  the  tender,  he  de- 
manded the  money  of  the  debtor,  and  the  debtor  refused  to  give  it. 

If  the  buyer  or  debtor  give,  and  the  seller  or  creditor  receive,  a 
negotiable  note  or  bill  for  the  sum  due,  this  is  not  anywhere  abso- 
lute and  conclusive  payment.  In  Maine  and  in  Massachusetts  the 
law  presumes  that  such  note  or  bill  is  payment  of  the  debt,  unless  a 
contrary  intention  is  shown.  In  nearly  all  the  States  of  this  Union 
but  those  two,  and  in  the  Supreme  Court  of  the  United  States,  it  is 
not  payment,  unless  the  intention  of  the  parties  that  it  should  be  so 
is  shown.  In  New  York,  it  has  been  held  that  the  debtor's  own 
promissory  note  is  not  payment,  even  if  it  be  intended  or  expressly 
agreed  that  it  should  be.  If  a  creditor,  who  receives  from  his 
debtor  any  bill  or  note,  negotiates  or  sells  it  for  value  to  a  third 
party,  without  making  himself  liable,  the  bill  or  note  was  payment, 
although  it  be  dishonored,  because  it  has  been  good  to  the  debtor, 
and  he  has  received  the  avails  of  it;  and  if  the  law  did  not  hold 
that  the  bill  had  paid  the  debt,  he  could  sue  the  original  debt,  and 
then  he  would  have  the  value  of  the  bill,  or  payment,  twice.  Not 
so,  however,  if  he  negotiates  it  in  such  a  way  that  he  is  himself  liable 
upon  it ;  for  if  he  pays  it,  he  loses  what  he  sold  it  for,  unless  he  can 
recover  his  debt  from  his  debtor. 


SECTION  n. 

APPKOPRIATION    OF    PAYMENT. 

IP  one  who  owes  several  debts  to  his  creditor  makes  to  him  a 
general  payment,  it  may  be  an  important  question  to  which  of  those 
debts  this  payment  shall  be  appropriated ;  for  some  of  them  may  be 


HOW  PAYMENT  MAY  BE  MADE.  143 

secured,  and  others  not,  or  some  of  them  may  carry  interest,  and 
others  not,  or  some  of  them  be  barred  by  the  Statute  of  Limitations, 
and  others  not. 

There  is  no  doubt  that  the  payor  may  appropriate  his  payment, 
at  the  time  of  the  payment,  at  his  own  pleasure.  And  if  he  does 
not  exercise  this  right,  the  receiver  may,  at  the  time  of  payment, 
make  the  appropriation.  But  if  neither  party  does  this  at  that  time, 
and  at  a  future  period  the  question  comes  up  as  to  which  party 
may  then  make  the  appropriation,  or  rather,  how  the  law  will  then 
appropriate  the  payment,  it  is  then  the  better  and  prevailing  rule, 
that,  if  the  court  can  ascertain,  either  from  the  words  used,  or 
from  the  circumstances  of  the  case,  or  from  any  usage,  what  was 
the  intention  and  understanding  of  the  parties  at  the  time  of  the 
payment,  that  intention  will  be  carried  into  effect.  And  if  this  can- 
not be  ascertained,  then  the  court  will  direct  such  appropriation  of 
the  payment  as  will  best  protect  the  rights  and  interests  of  both 
parties,  and  do  justice  between  them.  And  one  reason  for  this 
conclusion  would  be,  that  the  law  would  presume  that  this  was  the 
original  intention  of  the  parties.  A  very  general  rule,  which  would 
indeed  be  always  adopted  in  the  absence  of  especial  reason  to  the 
contrary,  is,  to  apply  the  payment  first  to  the  oldest  debt,  until 
that  is  satisfied,  and  then  go  on  applying  the  payment  to  the  other 
debts  in  the  order  of  their  age. 

If  A  owes  a  debt  to  B,  on  B's  own  account,  and  another  debt  to 
B  as  trustee  for  somebody,  and  A  pays  B  a  sum  of  money  without 
appropriating  it,  B  cannot  apply  it  all  to  the  debt  due  him  on  his 
own  account ;  but  must  divide  it  between  that  debt  and  the  debt 
due  to  him  as  trustee,  in  proportion  to  their  respective  amounts. 
Because  it  is  his  duty  as  trustee  to  take  as  good  care  of  the  debts 
due  to  him  for  another,  as  of  those  due  to  him  on  his  own  account. 

We  have  spoken  of  a  "  bill  or  note ;  "  and  notes  are  sometimes 
called  bills ;  so  bank-notes  are  often  called  bank-bills.  But  the 
legal  meaning  of  "  bill "  is  always  a  draft  or  order  on  somebody  to 
pay  money.  A  note  is  a  promise  to  pay.  See  chapter  on  Notes  and 
Bills. 


144  BECEEPTS  AND  RELEASES. 


CHAPTER   XV. 

A.1VI> 


A  RECEIPT  is  only  an  acknowledgment  that  a  sum  of  money  has 
been  paid.  It  may  be  in  one  word,  as  when,  under  a  bill  of  parcels, 
the  seller  writes  the  word  "  paid,"  and  signs  it.  More  commonly 
the  words  are,  "  Received  Payment."  Formerly  it  was  usual  to  add 
the  words  "  Errors  Excepted."  Then  it  grew  customary  to  write 
the  initial  letters  "  E.  E."  instead  of  the  words  ;  but  all  this  is 
unnecessary.  If  there  be  an  error  in  the  receipt,  or  in  the  paper 
receipted,  the  law  permits  the  party  injured  by  it  to  explain  and 
correct  the  error,  although  there  be  no  express  reservation  or  excep- 
tion of  errors. 

Receipts  are  of  all  degrees  of  fulness,  from  the  single  word 
"  paid,"  to  those  which  relate  the  particulars  for  which  the  receipt 
is  given,  and  the  manner  in  which  the  money  was  paid,  or  the  thing 
delivered.  I  give  the  following  forms  :  — 


(45.) 

(Date.)     This  day  I  have  received  from 

dollars. 

(Signature.') 


(46.) 
(Date.)     This  day  I  have  received  from 


dollars,  on  account  of 

(Signature.') 

(47.) 

(Date.)  This  day  the  following  (papers,  or  other  articles,  enumerating  and  de- 
scribing them)  were  delivered  to  me  by  ,  (add,  on  account  of, 
or  in  execution  of,  the  promise  or  bargain,  describing  it;  and,  if  they  are  delivered  foi 
any  particular  purpose,  describe  that),  and  I  hereby  acknowledge  the  receipL  of  them 

(Sigriature.) 


FOEMS  OF  KELEASES.  145 

Every  receipt  is  open  to  evidence,  not  only  to  explain  it,  but  to 
contradict  it.  Herein  releases  differ  from  receipts.  A  release  gives 
up  some  right  or  claim  which  the  releasor  had  against  the  releasee. 
It  is  in  the  nature  of  a  contract,  and  therefore  cannot  be  controlled 
or  contradicted  by  evidence,  unless  on  the  ground  of  fraud.  But  if 
its  words  are  ambiguous,  or  may  have  either  of  two  or  more  mean- 
ings, evidence  is  receivable  to  determine  the  meaning. 

Like  every  other  contract,  it  requires  a  consideration,  and  is  of  no 
force  without  one.  But  here  comes  in  the  rule  of  law  as  to  a  seal. 
The  general  rule  is,  as  has  been  stated  before,  a  seal  implies,  or 
is  the  same  as,  the  assertion  of  a  consideration ;  and  therefore  it  is 
always  customary  to  put  a  seal  to  a  release.  But  a  release,  even  with 
a  seal,  if  it  can  be  shown  to  have  been  given  without  any  considera- 
tion whatever,  can  be  set  aside.  It  is  always  best  to  state  in  the 
release  itself  that  it  was  given  for  a  consideration,  and  what  the 
consideration  is.  A  release  properly  drawn,  and  duly  signed  and 
sealed,  is  a  complete  defence  to  an  action  grounded  on  any  of  the  debts 
or  claims  released. 

The  following  forms  are  for  releases  of  various  kinds :  — 


(48.) 
A  General  Release. 

Know  all  Men  by  these  Presents,  That  I,  (the  name  of  the  relcaser) 

of  for  and  in  consideration  of  the  sum  of 

,  to  me  paid  by  of  , 

have  remised,  released,  and  forever  discharged,  and  by  these  presents  do,  fo^ 
me,  my  heirs,  executors,  and  administrators,  remise,  release,  and  forever  discharge 
the  said  his  heirs,  executors,  and  administrators,  of 

and  from  all  and  all  manner  of  action  and  actions,  cause  and  causes  of  action,  suits, 
debts,  dues,  sum  and  sums  of  money,  accounts,  reckonings,  bonds,  bills,  specialties, 
covenants,  contracts,  controversies,  agreements,  promises,  variances,  damages,  judg- 
ments, extents,  executions,  claims,  and  demands  -whatsoever,  in  law  and  in  equity, 
•which  against  the  said  I  ever  had,  now  have,  or  which  I, 

my  executors  or  administrators  hereafter  can,  shall,  or  may  have,  for,  upon,  or  by 
reason  of,  any  matter,  cause,  or  thing  whatsoever,  from  the  beginning  of  the  world 
to  the  day  of  the  date  of  these  presents. 

In  Witness  Whereof,  &c. 


146  EECEIPTS  AND  EELEASE8. 

(49.) 
A  Mutual  General  Release  by  Indenture. 

This  Indenture,  Made  between  of 

gjyj  of  >  witnesseth,  that  the  said 

doth,  by  these  presents  remise,  release  and  forever  quit  claim,  unto 
the  ^d  ,  all  and  all  manner  of  actions,  (as  before ;) 

and  this  indenture  further  witnesseth,  that  the  said  bj  these 

presents,  doth  remise,  release,  and  forever  quit  claim,  unto  the  said 
all  and  all  manner  of  actions,  (as  before'). 

In  Witness  Whereof,  &c. 

(50.) 
A  Release  from  Creditors  to  a  Debtor,  under  a  Composition. 

To  all  Persons  to  \vhom  these  Presents  may  come,  we  who  have 
hereunto  set  our  hands  and  seals,  creditors  of  of  ,  send 

greeting.    Whereas  the  said  is  indebted  to  us  his  said 

creditors,  in  several  sums  of  money,  which  he  is  not  able  fully  to  satisfy  and  dis- 
charge ;  we  therefore  have  agreed,  and  do  hereby  agree,  to  accept  of  the  sum  of 
in  full  payment  and  satisfaction  of  all  the  debts,  owing 

to  us  respectively  at  the  date  hereof,  by  and  from  the  said  , 

which  is  paid  by  or  for  the  said  (the  name  of  the  debtor)  to  (the  names  of  the  persons 
to  whom  the  money  is  to  be  paid  for  the  creditors  releasing)  *  and  assignees  by  virtue  of 
a  commission,  of  banltrupt  awarded  against  the  said  ,  for  the  use  of, 

and  to  the  intent  that  the  same  may  be  shared  and  divided  amongst  us  his  said 
creditors,  seeking  relief  under  the  said  commission,  in  proportion  and  according  to 
the  debts  to  us  severally  due  and  owing :  Now  therefore  know  ye,  that  for  the 
consideration  aforesaid,  each  of  us,  the  said  creditors  who  have  hereunto  set  our 
hands  and  seals,  for  him  and  herself,  his  and  her  heirs,  executors,  and  copartner?, 
doth  by  these  presents,  remise,  release,  and  forever  discharge  the  said 
his  heirs,  executors,  and  administrators,  of  and  from  our  said  several  debts,  and  all 
and  all  manner  of  action  and  actions  which  against  the  said 

,  each  and  every  of  us  the  said  creditors  now  hath,  or  which 
each  and  every  of  our  heirs,  executors,  or  administrators  respectively,  hereafter 
may,  can,  or  ought  to  have,  claim,  or  demand,  for,  upon,  or  by  reason  of,  the  said 
several  and  respective  debts  to  us  severally  due  and  owing,  or  for  or  by  reason  of 
any  other  matter,  cause,  or  thing  whatsoever  from  the  beginning  of  the  world, 

In  Witness  Whereof,  &c. 


FOBJ&S  OF  RELEASES.  147 

(51.) 
A  Release  of  all  Legacies. 

Know  all  Men  by  these  Presents,  That  I 

of  widow,  have  remised,  released,  and  forever  quit  claimed, 

and  by  these  presents  do  for  me  unto  of  , 

gentleman,  executor  of  the  last  will  and  testament  of  late 

of  ,  deceased,  and  to  the  heirs,  executors,  and  administrators 

of  the  said  ,  all  legacies,  gifts,  bequests,  sum  and  sums  of  money 

and  demands  whatsoever,  bequeathed  and  given  unto  me  the  said  , 

in  and  by  the  last  will  and  testament  of  ,  deceased,  and  all 

and  all  manner  of  actions  and  suits,  sum  and  sums  of  money,  debts,  duties,  reckon- 
ings, accounts,  and  demands  whatsoever,  which  I  the  said 

ever  had,  now  have,  or  that  I,  my  executors  or  administrators,  can  or  may,  at  any 
tune  or  times  hereafter,  have,  challenge,  or  demand  against  the  said 
his  executors,  administrators,  or  assigns,  for  or  by  reason  of  any  matter,  cause,  or 
thing  whatsoever,  from  the  beginning  of  the  world  until  the  day  of  the  date  hereof. 

In  Witness  Whereof,  &c. 

(520 
A  Release  of  a  Bond,  it  being  Lost. 

To  all  to  whom  these  Presents  may  come,  (name  ofrcleaser)  sendeth 
greeting.     TNTiereas  by  his  bond  or  obligation,  bearing  date 

(recite  the  bond),  as  by  the  said  bond  or  obligation,  and  the  condition  thereof  may 
appear :  And  whereas  the  sum  of  mentioned  hi  the  said  bond, 

with  all  the  interest  for  the  same,  is  paid  and  satisfied  unto  me  the  said  , 

in  full  discharge  for  the  said  bond  or  obligation :  And  whereas  the  said  bond  or 
obligation  is  lost,  or  at  present  mislaid,  so  that  it  cannot  be  found  to  be  delivered 
up  to  the  said  ,  to  be  cancelled :  Now  know  ye,  that  I  the  said 

for  the  consideration  aforesaid,  have  remised,  released,  and 

quit  claimed,  and  by  these  presents  do,  for  me,  my  executors  and  administrators, 
remise  unto  the  said  his  heirs,  executors, 

and  administrators,  as  well  the  said  recited  bond  or  obligation,  as  all  such  sums  of 
money  as  therein  are  mentioned  to  be  due  and  payable,  unto  me  the  said 

my  executors,  administrators,  or  assigns  ;  and  also  all  actions,  suits, 
cause  and  causes  of  action,  accounts,  debts,  reckonings,  sums  of  money,  judgments, 
executions,  and  demands  whatsoever,  which  I,  the  said  ever 

had,  now  have,  or  that  I,  my  executors,  administrators,  or  assigns,  or  any  of  us, 
can  or  may  have,  for  or  against  the  said  his  executors  or 

administrators,  for,  or  by  reason  of,  the  said  recited  bond  or  obligation,  or  any  other 


148  RECEIPTS  AND  RELEASES. 

matter,  cause,  or  thing  whatsoever,  concerning  the  same,  from  the  beginning  of  the 
•world  to  the  day  of  the  date  hereof. 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of  (Signatures)     (&flb.) 

In  Presence  of 

( The  following  covenant  may  be  inserted  before  "  In  witnesi.") 

And  I,  the  said  for  me,  my  executors,  ^ , 

do  covenant  >  to  and  with  the  said  ,  his 

,  that  if  I  the  said  ,  my  executors,  , 

or  any  of  us,  at  any  time  hereafter,  do  find  or  can  obtain  the  said  recited  bond  or 
obligation,  then  I,  the  said  ,  my  executors 

or  some  of  us,  shall  and  will,  within  two  months  next  after  the  said  obligation  shall 
be  found  as  aforesaid,  deliver,  or  cause  to  be  delivered,  the  said  bond  or  obligation, 
unto  the  said  his 


(53.) 
A  Release  of  a  Judgment. 

This  Indenture,  Made  the  day  of 

in  the  year  one  thousand  eight  hundred  and  between  of 

the  second  part, 

Whereas,  Judgment  was  rendered  on  the  day  of 

in  the  year  one  thousand  eight  hundred  and  in  an  action  in 

the  between  plaintiff      and 

defendant      in  favor  of  the  said  against  the  said 

for  the  sum  of  as  appears  by  the 

Now  this  Indenture  Witnesseth,  That  the  said  part  of  the  first 

part  in  consideration  of  the  sum  of  to  duly  paid  at 

the  time  of  the  sealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby 
acknowledged,  ha  granted,  released,  discharged  and  set  over,  and  by  these 
presents  do  grant,  release,  discharge  and  set  over,  unto  the  said  part  of  the 
second  part,  the  following  described  premises,  to  wit : 

Together  with  the  hereditaments  and  appurtenances  thereto  belonging; 
and  all  the  right,  title  and  interest  of  the  said  part  of  the  first  part,  of,  in  and 
to  the  same,  to  the  intent  that  the  lands  hereby  conveyed  may  be  released  and  dis- 
charged from  the  said  above-mentioned  judgment,  and  from  all  lien  or  incumbrance 
that  has  attached  to  the  same,  by  reason  of  the  recovery  of  the  said  judgment,  as 
free  and  clear  in  all  respects  as  though  said  judgment  had  not  been  rendered.  To 
have  and  to  hold,  the  lands  and  premises  hereby  released  and  conveyed,  to  the  said 


FOKMS  OF  RELEASES.  149 

part        of  the  second  part  heirs  and  assigns,  to  their 

only  proper  use,  benefit  and  behoof  forever,  free,  clear  and  discharged  of  ami  from 
all  lien  and  claim,  under  and  by  virtue  of  the  judgment  aforesaid. 

In  "Witness  Whereof,  The  said  part       of  the  first  part  ha       hereunto 
Bet  hand    and  seal    the  day  and  year  first  above  written. 

(Signatures.)     (Seals.') 
In  Presence  of 

(54.) 
A  Release  of  a  Condition. 

Know  all  Men  by  these  Presents,  That  I,  of 

,  for  divers  good  considerations  me  hereunto  moving,  have 

remised,  released,  and  quit  claimed,  and  by  these  presents,  for  me,  my  executors, 
administrators,  and  assigns,  do  unto 

of  ,  his  heirs,  executors,  administrators,  and  assigns,  as  well  one 

proviso  or  condition  and  all  a'ad  every  the  sum  and  sums  of  money,  specified  hi  the 

same  proviso  or  condition,  contained  or  comprised  in  one  pair  of  indentures  of 

bearing  date  ,  made  between  me  the  said 

,  of  the  one  part,  and  the  said  of  the 

other  part,  and  also  all  and  all  manner  of  actions  and  suits,  cause  and  causes  of 
actions  and  suits,  for  or  concerning  the  said  proviso  or  condition. 

In  "Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

(Signature.)     (Seal.) 
In  Presence  of 

(55.) 
A  Release  of  a  Covenant  contained  in  an  Indenture  of  Lease. 

To  all  Persons  to  whom  these  Presents  may  come,  (name  ofreleaser) 
sendeth  greeting.    Whereas  in  and  by  an  indenture  of  lease,  bearing  date 
made  between  ,  of  the  one  part,  and  the  said 

of  the  other  part,  the  :e  is  contained  a  covenant  in  these  words  following,  viz.  (recite 
the  covenant  verbatirr,  as  therein  contained)  whereunto  relation  being  had,  it  doth  at 
large  appear  :  Now  know  ye,  that  I,  the  said  ,  for  divers 

good  causes  and  considerations,  me  hereunto  moving,  have  remised,  released,  and 
quit  claimed  and  by  these  presents  for  me  do 

unto  the  said  ,  his  the  said  covenant,  grant, 

clause,  agreement,  and  article,  before  rehearsed  or  recited,  and  all  and  every  other 
matter,  thing,  and  things  specified,  declared,  and  contained  in  the  same  covenant, 
clause,  and  agreement,  and  all  the  benefit,  profit,  advantage,  and  commodity,  that 
by  any  manner  of  means,  may  or  might  arise,  grow,  come,  or  happen  to  me  the 
said  ,  for  or  by  reason  of  the  same  covenant,  clause,  article,  or 


150  RECEIPTS  AND  RELEASES. 

agreement,  or  any  word,  sentence,  matter,  thing,  or  things  therein  contained,  so  that 
the  said  his  executors  and  assigns,  and  every  of  them,  from 

henceforth  forever,  shall  be  fully  acquitted,  released,  and  discharged  against  me  the 
Baid  my  executors,  and  administrators,  and  every  of  us,  of, 

from,  and  for  the  said  covenant,  grant,  clause,  article,  and  agreement  before  rehearsed 
or  recited,  and  of,  from,  and  for,  every  thing  and  things,  touching  the  same  (but 
this  present  release  shall  not  in  anywise  extend  to  any  other  covenant,  clause,  or 
article  in  the  said  indenture  contained). 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

(Signature.)     (Seal.) 
In  Presence  of 

(56.) 
A  Release  in  Extinguishment  of  a  Power. 

To  all  Persons  to  whom  these  Presents  may  come,  Now  know  ye, 
that  I,  the  said  ,  pursuant  to  the  said  agreement,  and  for  divers 

good  causes  and  considerations  me  hereunto  moving,  have  released,  extinguished, 
and  discharged,  and  by  these,  presents  do  fully  and  absolutely  release,  extinguish, 
and  discharge,  the  said  recited  power  for  raising  the  said  sum  of 
as  aforesaid,  and  all  the  lands  therein  comprised,  or  subject  thereto, 

so  that  I,  the  said  shall  not,  nor  will,  at  any  time  or  times  here- 

after, raise  the  same,  or  any  part  thereof,  or  hereafter  charge  the  said  lands 
with  the  payment  thereof,  or  any  part  thereof. 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

(Signature.)     (Seal.) 
In  Presence  of 

(57.) 

A  Release  from  a  Lessor  to  a  Lessee  (upon  his  surrendering  7iis 
Lease)  from  the  Covenants  therein. 

To  all  Persons  to  whom  these  Presents  may  come,  (name  ofreleaser) 

sends  greeting :    "Whereas  the  said  by  his  indenture  of  lease,  bearing 

date  ,  did  demise  unto  a  messuage 

in  at  a  certain  rent,  for  a  certain  term  of 

years,  of  which  about  years  are  yet  to  come  and,  undetermined,  in 

which  said  lease  are  contained  covenants  for  repairing  the  said  premises,  and  other 

covenants,  on  the  part  of  the  said  to  be  performed :     And  whereas, 

by  agreement  between  the  said  and  the  said 

hath  delivered  up  the  said  recited  lease,  and  surrendered  the 

Bame,  and  all  his  interest  and  term  in  and  to  the  said  house  and  premises :    Now 


FOEMS  OF  RELEASES.  151 

therefore  know  ye,  that  the  said  ,  in  consideration  tnereof, 

doth  hereby,  for  himself,  his  heirs,  executors  and  administrators,  remise,  release,  and 
forever  discharge  the  said  his  executors  and  administrators,  of 

and  from  all  and  every  the  covenants  and  agreements,  in  the  said  recited  lease 
contained,  by  and  on  the  part  and  behalf  of  the  said  his 

to  be  done  and  performed,  and  from  all  actions,  suits,  costs,  charges, 
payments,  damages,  claims,  and  demands  whatsoever,  hi  law  and  equity,  for  or 
concerning  the  same  in  any  manner  of  wise. 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

(Signature.)     (Seal.) 

In  Presence  of 

(58.) 
A  General  Release  of  Dower. 

To  all  to  whom  these  Presents  shall  come,  (name  of  rekaser) 

send  greeting :  Know  ye,  that  the  said  the 

party  of  the  first  part  to  these  presents,  for  and  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States,  to  her  in  hand  paid  at  or  before 
the  ensealing  and  delivery  of  these  presents,  by  of  the  second 

part,  the  receipt  whereof  is  hereby  acknowledged,  hath  granted,  remised,  released, 
and  forever  quit  claimed,  and  by  these  presents  doth  grant,  remise,  release,  and 
forever  quit  claim,  unto  the  said  party  of  the  second  part,  heirs  and  assigns 

forever,  all  the  dower  and  thirds,  right  and  title  of  dower  and  thirds,  and  all  other 
right,  title,  interest,  property,  claim  and  demand  whatsoever,  in  law  and  equity,  of 
her,  the  said  party  of  the  first  part,  of,  in,  and  to  (here  describe  the  estate  the  dower 
in  tvhich  is  released*) 

so  that  she,  the  said  party  of  the  first  part,  her  heirs,  executors,  administrators  or 
assigns,  nor  any  other  person  or  persons,  for  her,  them,  or  any  of  them,  shall  not 
have,  claim,  challenge,  or  demand,  or  pretend  to  have,  claim,  challenge,  or  demand, 
any  dower  or  thirds,  or  any  other  right,  title,  claim  or  demand  whatsoever,  of,  in  or 
to  the  same,  or  any  part  or  parcel  thereof,  in  whosoever  hands,  seism,  or  possession 
the  same  may  or  can  be,  and  thereof  and  therefrom  shall  be  utterly  barred  and 
excluded  forever  by  these  presents. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

S'gnature.)     (Seal.) 

In  Presence  of 

(59.) 
A  Release  of  Dower  to  the  Heir 

Know  all  Men  by  these  Presents,  That  I  relict  of 

late  ,  as  well  for  and  in  consideration 


152  EECETPTS  AND  KELEASES. 

of  to  me  paid,  at  or  before  ,  by  my  son 

,  the  receipt  whereof  I  do  hereby  acknowledge,  and  for 

the  love  and  affection  which  I  have  to  my  said  son,  have  granted,  remised,  released 

and  forever  quit  claimed,  and  by  these  presents -do  unto  the  said 

his  heirs  and  assigns  forever,  all  the  dower  and  thirds,  right 

and  title  of  dower  and  thirds,  and  all  other  right,  title,  interest,  property  claim,  and 
demand  whatsoever,  in  law  and  in  equity,  of  me  the  said  of,  in, 

and  to  (a  description  of  the  parcel  of  land  in  which  dower  is  released}  so  that  neither 
I,  the  said  my  heirs,  executors,  or  administrators,  nor  any 

other  person  or  persons  for  me,  them,  or  any  of  them,  shall  have,  claim,  challenge, 
or  demand,  or  pretend  to  have  any  dower  or  thirds,  or  any  other 

right,  title,  claim,  or  demand,  of,  in,  or  to  'the  said  premises,  but  thereof  and  there- 
from, shall  be  utterly  debarred  and  excluded,  forever,  by  these  presents. 

In  Witness  "Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature)     (Seal.) 

In  Presence  of 


(60.) 
A  Release  of  Dower  in  Consideration  of  an  Annuity  given  by  Will. 

To  all  Persons  to  whom  these  Presents  may  come,  (name  ofrekaser) 
widow,  relict  and  residuary  legatee  of  late  of  ,  deceased, 

Bendeth  greeting.    Whereas  the  said      .  ,  in  and  by  his  last  will 

and  testament,  duly  signed,  sealed,  published,  and  declared  in  my  presence  and 
with  my  approbation,  bearing  date  ,  did  settle  and  secure  unto 

and  upon  me  the  said  ,  an  annuity  of  to 

be  paid  unto  me  half  yearly,  by  equal  payments,  in  lieu  and  full  satisfaction  of  the 
dower  or  thirds  at  common  law,  which  I  might  otherwise  have,  claim,  or  be  entitled 
unto,  out  of  all  and  every  the  lands,  tenements,  and  hereditaments  whatsoever,  of 
my  said  late  husband,  deceased,  or  of,  in,  to,  or  out  of  the  reversion  or  remainder, 
rents,  issues,  and  profits  thereof:  Now  know  ye,  that  I  the  said 
for  and  in  consideration  of  the  said  annuity  so  secured  to  me  as  aforesaid,  and  hi 
pursuance  and  part  performance  of  the  said  last  will  and  testament  of  my  said  late 
husband,  do  hereby  declare  myself  fully  satisfied  and  contented  therewith,  and  do 
hereby  remise,  release,  and  forever  quit  claim  unto  of 

,  and  of  ,  trustees, 

appointed  in  and  by  the  said  last  will  and  testament  of  my  said  late  husband  (in 
their  actual  possession  and  seisin  now  being)  their  executors  ,  all 

and  all  manner  of  dower  in  and  to  the  said  premises,  but  thereof  and  therefrom, 
shall  be  utterly  debarred  and  excluded,  forever,  by  these  presents. 


FORMS  OF  RELEASES.  153 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal.') 

In  Presence  of 

(61.) 

A  Release  of  Dower  where  the  Husband  of  the  Widow  joins  in 

the  Deed.    MSS. 

Know  all  Men  by  these  Presents,  That  (name  of  husband)  of 

and        (name  of  wife)  his  wife,  in  her  right,  hi  consideration 
of  paid  them  by  of  ,  the 

receipt  whereof  they  hereby  acknowledge,  have  granted,  remised,  released,  and  for- 
ever quit  claimed,  and  by  these  presents  do  unto  the  said 
his  heirs  and  assigns  forever,  all  the  right  which  the  said 
hath  to  dower  or  thirds,  of  and  in          (here  describe  the  estate) 
whereof  uer  late  husband     (name  of  former  husband)  late  died  seized, 
situate,                        ,  which  she  claims  as  of  the  endowment  of  the  said 

deceased,  and  all  the  right,  title,  interest,  and  claim  whatsoever,  which  the 
said  and  have,  or  either  of  them  hath, 

or  by  law  might  have,  of,  in,  and  to  the  same  :    To  have  and 

to  hold  the  same  to  the  said  and  his  heirs  and  assigns  for- 

ever ;  and  the  said  and  for  themselves, 

their  heirs,  executors,  and  administrators,  do  hereby  covenant  with  the  said 

and  his  heirs  and  assigns,  that  he  and  they  shall  henceforth 
forever,  have  and  quietly  enjoy  the  released  premises,  without  any  claim  or  demand 
had  or  made,  or  to  be  had  or  made  by  them,  or  any  persons,  claiming,  or  who  may 
claim  the  same  or  any  part  thereof,  by,  from,  or  under  them  or  their  heirs. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.')     (Seal.) 
In  Presence  of 

\ 

(62.) 
A  Release  of  a  Trust. 

To  all  to  whom  these  Presents  may  come,  (name  ofreleaser)  sendeth 
greeting.    Whereas,  by  indenture  bearing  date  ,  made  between 

(here  recite  the  deed)  in  which  said  indenture  the  said 

doth  hereby  declare,  that  his  name  was  only  used  in  trust,  for  the  benefit  and 
Lehoof  of  of  :    Now  know  ye,  that  I,  the 

wad  ,  hi  discharge  of  the  trust  reposed  hi  me,  at  the  request 


154  EECEIPTS  A2STD  KELEASES. 

of  the  said  ,  have  remised,  released,  and  surrendered,  assigned, 

and  set  over,  and  by  these  presents,  for  me,  my  executors  and  administrators,  do 
freely  and  absolutely  remise  unto  the  said 

his  executors  ,  all  the  estate,  right,  title,  interest,  use,  benefit, 

privilege,  and  demand  whatsoever,  which  I  the  said  have,  or 

may  have  or  claim,  of,  or  to  the  said  premises,  or  of  and  in  any  sum  of  money,  or 
other  matter  or  thing  whatsoever,  in  the  said  indenture  contained,  mentioned,  and 
expressed,  so  that  neither  I  the  said  my  executors  or  adminis- 

trators, or  any  of  us,  at  any  time  hereafter,  shall  or  will  ask,  claim,  challenge,  or 
demand  any  interest  or  other  thing,  in  any  manner  whatsoever,  by 

reason  or  means  of  the  said  indenture,  or  any  covenant  therein  contained,  but 
thereof  and  therefrom,  and  from  all  actions,  suits,  and  demands,  which  I,  my 
executors,  administrators,  or  assigns,  may  have  concerning  the  same,  shall  be 
utterly  excluded  and  forever  debarred,  by  these  presents. 

In  Witness  Whereofj  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal.) 

In  Presence  of 

(63.) 
A  Release  of  Right  to  Lands. 

Know  all  Men  by  these  Presents,  That  I  (name  ofrelear*.r)  of 

,  hi  consideration  of  to  me  paid  by  (name 

of  releasee)  the  receipt  ,  have  remised,  released,  and  fcrever 

quit  claimed,  and  by  these  presents  do  unto  the  said 

and  his  heirs,  all  the  estate,  right,  title,  interest,  use,  trust,  claim,  and 
demand  whatsoever,  both  at  law  and  in  equity,  which  I,  the  said 
have,  of,  in,  to,  or  out  of,  all  and  singular  the  following  described  parcel  of  land 
(here  describe  the  land)  so  that  neither  I  the  said  ,  my  heirs  or 

assigns,  or  any  other  person  or  persons  in  trust  for  me  or  them,  or  in  my  or  their 
name  or  names,  or  in  the  name,  right,  or  stead  of  any  of  them,  shall  or  will,  can 
or  may,  by  any  ways  or  means  whatsoever,  hereafter  have,  claim,  challenge,  or  de- 
mand, any  right,  title,  or  interest,  property,  claim,  and  demand,  of,  hi,  to,  or  out  of 
the  same  ,  or  aviy  of  them,  or  any  part  thereof,  but  that  I  the  raid 

,  my  heirs  and  assigns,  and  every  of  them,  from  all  estate,  ri{  ht, 
title,  interest,  property,  claim,  and  demand,  of,  in,  to,  or  out  of  the  said  , 

or  any  of  them,  or  any  part  thereof,  are,  is,  and  shall  be,  by  these  presents  fore  -er 
excluded  and  debarred. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  prese  ks 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

hi  the  year  of  our  Lord  one  thousand  eight  hundred  and 

In  Presence  of  (Signature.)     (Sea) 


FORMS   OF  RELEASES.  155 

(64.) 
A  Release  between  two  Traders  on  Settling  Accounts. 

Whereas  sundry  accounts,  current  and  otherwise,  and   divers  dealings   in 
trade  have  been  subsisting  for  a  long  time  past,  between  of 

trader,  and  of  trader, 

which  said  accounts  and  dealings,  the  said  and 

have  balanced  and  adjusted,  whereby  it  appears  that  nothing  remains  due 
from  the  one  to  the  other ;  and  whereas,  therefore,  to  prevent  any  future  disputes, 
concerning  the  said  accounts  and  dealings,  and  to  confirm  the  said  adjustment,  the 
said  and  have  mutually  agreed  to  give 

reciprocal  releases  to  each  other.  Now  know  all  men  by  these  presents,  that  the 
s«id  (one  of  the  parties)  (for  the  considerations  abovesaid,  and  to  prevent  all 
future  disputes)  for  himself,  his  executors,  and  administrators,  doth  remise,  release, 
and  forever  quit  claim  unto  the  said  (the  other  party)  his 

all  and  all  manner  of  action  and  actions,  cause  and  causes  of  action,  suits,  debts, 
dues,  sum  and  sums  of  money,  accounts,  reckonings,  bonds,  specialties,  covenants, 
contracts;  controversies,  agreements,  promises,  variances,  damages,  extents,  execu- 
tions, claims  and  demands  whatsoever,  both  at  law  and  in  equity,  which  against 
the  said  his  the  said 

nov  hatli  or  ever  had,  on  account  of  their  said  mutual  dealings,  or  for  or  by  reason 
of  any  other  cause,  matter,  or  thing  whatsoever,  from  the  beginning  of  the  world 
to  the  day  of  the  date  of  these  presents. 

And  the  said  (the  other  party)  (for  the  considerations  abovesaid,  and  to  pre- 
vent all  future  disputes)  for  himself,  his  executors,  and  administrators,  doth  remise, 
release,  and  forever  quit  claim  unto  the  said  (pie  other  party),  his 
all  and  all  manner  of  action  and  actions,  cause  and  causes  of  action,  suits,  debts, 
dues,  sum  and  sums  of  money,  accounts,  reckonings,  bonds,  specialties,  covenants, 
contracts,  controversies,  agreements,  promises,  variances,  damages,  extents,  execu- 
tions, claims  and  demands  whatsoever,  both  at  law  and  in  equity,  which  against 
the  said  his  the  said 

now  hath  or  ever  had,  on  account  of  their  said  mutual  dealings,  or  for  or  by  reason 
oi  any  other  cause,  matter,  or  thing  whatsoever,  from  the  beginning  of  the  world  to 
tL  *.  day  of  the  date  of  these  presents. 

In  Witness  Whereof,  We  have  hereunto  set  our  hands  and  seals,  this 

day  of  in  the  year 

(Signatures.)     (Seals.) 
Tn  Presence  of 

12 


156  NOTES  OF  HAND.   BILLS   OF  EXCHANGE,  ETC. 


CHAPTER   XVI. 


NOTES    OF    HAP03    AIV3>    BTT,T,S    OF 

CBDECK18. 


SECTION  L 
THE   PURPOSE  OF,  AND  THE  PARTIES  TO,  SUCH  PAPERS. 

THESE  instruments  are  usually  negotiable.  By  negotiable  paper 
is  meant  evidence  of  debt  which  may  be  transferred  by  indorse- 
ment or  delivery,  so  that  the  transferee  or  holder  may  sue  the  same 
in  his  own  name,  and  as  if  it  had  been  made  to  him  originally  ;  or, 
in  other  words,  it  means  paper,  that  is,  bills  of  exchange  or  promis- 
sory notes,  or  drafts,  or  checks  payable  to  the  order  of  a  payee,  or 
to  bearer. 

The  rules  of  law  on  the  subject  of  negotiable  paper  are  more 
exact  and  technical  than  those  of  any  other  department  of  Mercan- 
tile Law.  They  reach,  on  many  points,  an  extreme  nicety,  which 
makes  it  difficult  to  express  them  intelligibly  to  persons  who  do  not 
already  possess  some  familiarity  with  the  subject.  All  difficulty  of 
this  kind  could  have  been  easily  avoided  by  me,  by  omitting  any 
notice  of  these  nice  points.  But  it  was  thought  better  to  mention 
them,  one  and  all,  for  these  are  the  things  an  intelligent  man  of 
business  should  know ;  and  although  the  rules  stated,  especially  those 
in  reference  Jo  presentment,  demand,  notice,  and  some  other  subjects, 
may  seem  to  be  intricate  and  difficult,  they  require,  it  is  believed, 
only  careful  consideration  to  be  fully  understood. 

Where  and  when  bills  of  exchange  were  invented  is  not  certainly 
known.  They  were  not  used  by  any  ancient  nations,  but  have  been 
employed  and  recognized  by  most  commercial  nations  for  some 
centuries.  A  still  more  recent  invention  is  the  promissory  negoti- 
able note,  which,  in  this  country,  for  inland  and  domestic  purposes, 
has  taken  the  place  of  the  bill  of  exchange  very  generally.  Besides 


COMMON  FOKM  OF  A  BILL  OF  EXCHANGE.  157 

these  two,  bills  of  lading,  and  some  other  documents,  have  a  kind 
of  negotiability,  but  it  is  quite  imperfect.  The  utility  of  bills  and 
notes  in  commerce  arises  from  the  fact  that  they  represent  money, 
which  is  the  representative  of  the  market  value  of  every  thing ;  and 
many  of  the  peculiar  rules  respecting  negotiable  paper  are  derived 
from  this  representation,  and  intended  to  make  it  adequate  and 
effectual. 

A  negotiable  bill  of  exchange  is  a  written  order  whereby  A  orders 
B  to  pay  to  C  or  his  order,  or  to  bearer,  a  sum  of  money,  absolutely 
and  at  a  certain  time. 

(65.) 
Common  Form  of  a  Bill  of  Exchange. 

New  York,  January  5, 1869. 
Value  received,  please  pay  to  C  or  order,  dollars, 

in  days  (or  months)  after  sight  (it  may  be  after  date),  On 

account  of 

(Signed)     A 

To  B 

A  is  the  Drawer,  B  the  Drawee,  and  C  the  Payee.  If  the  bill  is 
presented  to  B,  and  he  agrees  to  obey  the  order,  he  "  accepts  "  the 
bill,  and  this  he  does  in  a  mercantile  way  by  writing  the  word  "  Ac- 
cepted "  across  the  face  of  the  bill,  and  also  writing  his  name  below 
this  word ;  then  the  drawee  becomes  the  Acceptor.  If  C,  the  payee, 
chooses  to  transfer  the  paper  and  all  his  rights  under  it  to  some 
other  person,  he  may  do  this  by  writing  his  name  on  (usually  across) 
the  back ;  this  is  called  Indorsement,  and  C  then  becomes  an  In- 
dorser.  The  person  to  whom  C  thus  transfers  the  bill  is  an  Indorsee. 
The  indorsee  may  again  transfer  the  bill  by  writing  his  name  below 
that  of  the  former  Indorser,  and  the  Indorsee  then  becomes  the 
second  Indorser ;  and  this  process  may  go  on  indefinitely.  If 
the  added  names  cover  all  the  back  of  the  note,  a  piece  may  be 
wafered  on  to  receive  more.  In  France,  this  added  piece  is  called 
"  allonge"  and  this  word  is  used  in  some  law-books,  but  not  by  our 
merchants 


158  NOTES  OP  HAND,  BILLS   OF  EXCHANGE,  ETC. 

(66.) 
Common  Form  of  a  Promissory  Note. 

New  York,  January  5, 1869. 

Value  received  I  promise  to  pay  B  or  order, 

dollars,  in  days  (or  month»,  or  on  demand)  from  date* 

(Signature.) 

It  is  quite  important  to  have  a  clear  idea  of  the  difference  between 
the  parties  to  a  note,  and  the  parties  to  a  bill  of  exchange.  If  A 
makes  a  note  to  B,  then  A  promises  to  pay,  and  is  the  promisor,  and 
B  is  the  promisee,  or  payee.  But  if  it  be  payable  to  B  or  order,  B 
may  write  his  name  across  the  back,  that  is,  may  indorse  it,  and  is 
an  indorser.  And  if  he  directs,  over  his  signature  on  the  back,  that 
the  note  be  paid  to  any  person  in  particular,  such  payee  is  now  an 
indorsee.  But  when  a  bill  is  drawn,  nobody  promises,  in  words,  to 
pay  it.  A  orders  B  to  pay  to  C.  If  B,  when  requested,  says  he 
will  not  do  as  ordered,  the  law  supposes  A,  the  drawer,  to  have 
promised  that  he  would  pay  if  B  did  not.  If  B  "  accepts,"  the  law 
now  supposes  that  B  promises  C  to  pay  the  bill  to  him.  Now  B, 
being  the  acceptor,  is  held  by  the  law  just  as  a  maker  of  a  note  is, 
because  he  is  supposed  to  have  promised  in  the  same  way.  A,  the 
drawer,  is  held  just  as  the  first  indorser  of  a  note  is  held,  because  he 
is  supposed  to  have  promised  to  pay  if  B  did  not.  If  the  bill  was 
negotiable,  that  is,  payable  to  C,  or  his  order,  then  C  may  indorse 
the  bill,  and  although  his  name  is  the  only  one  on  the  back  of  the 
bill,  he  is  treated  in  law  only  as  second  indorser,  because  the  drawer 
is  bound  in  the  same  way  as  a  first  indorser.  And  if  D  then  puts  his 
name  below  C's,  he  is  treated  as  third  indorser,  and  so  on.  For  the 
rights,  obligations,  and  duties  of  all  these  parties,  see  the  subsequent 
sections. 

We  repeat,  that  a  negotiable  promissory  note  is  a  written  promise 
to  pay  to  a  certain  person  or  his  order,  or  to  bearer,  at  a  certain  time, 
a  certain  sum  of  money ;  and  he  who  signs  this  is  called  the  Maker 
or  the  Promisor ;  the  other  party  is  the  Promisee  or  Payee.  The 

*  It  is  best  to  -write  the  words,  "  from  date,"  although  they  are  often  omitted,  and  the  law  con- 
«trues  the  note  aa  if  they  were  written. 


"WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE.  159 

payee  of  such  a  note  has  the  same  power  of  indorsement  as  the  payee 
of  a  bill  of  exchange.  If  the  note  be  not  payable  "  to  order,"  nor  to 
"  bearer,"  it  is  then  not  negotiable  ;  these  words  "  or  order  "  or  "  to 
bearer  "  being  the  words  which  make  it  negotiable.  The  maker  of 
a  negotiable  note  holds,  as  has  been  said,  the  same  position  as  the 
acceptor  of  a  bill,  the  drawer  the  same  as  the  first  indorser  of  a  note ; 
that  is,  a  party  holding  a  note  and  seeking  payment  of  it  looks  first 
to  the  maker,  and  then  to  the  indorser ;  one  holding  a  bill  looks 
first  to  the  drawee  or  acceptor,  and,  on  his  failure,  to  the  drawer. 

Neither  indorsement,  nor  acceptance,  nor  making,  is  complete 
until  delivery  and  reception  of  the  bill,  or  note,  or  acceptance ;  and 
a  defendant  may  show  that  there  was  no  legal  delivery  of  the  paper. 

The  law  of  negotiable  paper  first  defines  a  bill  or  note,  and  deter- 
mines what  instruments  come  under  these  names,  and  then  describes 
and  ascertains  the  duties  and  obligations  of  all  the  parties  we  have 
named  above.  We  shall  follow  this  order. 


SECTION  n. 

WHAT  IS  ESSENTIAL   TO  A  NEGOTIABLE  NOTE  OR  BHJC. 

A  WRITTEN  order  or  promise  may  be  perfectly  valid  as  a  written 
contract  or  promise,  but,  although  made  "  to  order,"  will  not  be  ne- 
gotiable, unless  certain  requisites  of  the  law-merchant  are  complied 
with. 

The  difference  between  a  note  that  is  negotiable  and  one  that  is 
not,  is  very  important  in  many  respects.  One  of  these  is  as  to  the 
operation  of  the  trustee  process,  or  foreign  attachment,  or  garnishee 
process,  as  it  is  sometimes  called.  If  A  owes  B  a  hundred  dollars,  C, 
a  creditor  of  B,  may  trustee  A  (to  use  the  common  phrase),  and  A 
must  then  pay  to  C  what  he  owes  to  B.  And  this  is  so,  even  if  A 
have  given  his  note  to  B  for  the  hundred  dollars,  if  the  note  be  not 
negotiable,  that  is,  not  to  B  or  order.  But  if  the  note  be  negotiable, 
A  cannot  be  trusteed.  The  reason  is,  that  if  he  is  obliged  to  pay  the 
money  to  0,  and  B  should  indorse  the  note  to  D  for  value,  and  D 
take  it  honestly,  A  must  pay  the  note  to  D,  and  so  would  have  to 


160  NOTES  OF  HAND,   BILLS   OF  EXCHANGE,   ETC. 

pay  it  twice.     But  if  the  note  is  not  negotiable,  B  cannot  indorse  it, 
and  A  is  safe  in  paying  the  money  over. 

1.  The  Promise  must  be  absolute  aiid  definite, — The  promise  of  the 
note,  and  the  order  of  the  bill,  must  be  absolute.  Words  expressive 
of  intention  only  do  not  make  a  promissory  note,  and  a  mere  re- 
quest without  an  order  does  not  make  a  bill  of  exchange.  But  no 
one  word,  and  no  set  of  words,  are  absolutely  necessary ;  for  if  from 
all  the  language  the  distinct  promise  or  positive  order  can  be  in- 
ferred, that  is  sufficient. 

The  time  of  payment  is  usually  written  in  a  bill  or  note  ;  if  not, 
it  is  payable  on  demand.  The  time  of  payment  must  not  depend  on 
a  contingency.  In  fact,  any  contingency  apparent  on  the  face  of  the 
instrument  prevents  it  from  being  a  negotiable  note  ;  and  the  hap- 
pening of  the  contingency  does  not  cure  it.  And  the  payment 
promised  or  ordered  must  be  of  a  definite  sum  of  money. 

A  negotiable  bill  of  exchange  or  promissory  note  must  be  payable 
in  money  only,  and  not  in  goods  or  merchandise,  or  property  of  any 
kind,  or  by  the  performance  of  any  act.  If  payable  in  "  current 
funds,"  or  "  good  bank-notes,"  or  "  current  bank-notes,"  this  should 
not  be  sufficient  on  general  principles,  and  according  to  many  au- 
thorities ;  some  courts,  however,  construe  this  as  meaning  notes 
convertible  on  demand  into  money,  and  therefore  as  the  same  thing 
as  money,  and  call  the  note  negotiable. 

A  bill  or  note  may  be  written  upon  any  paper  or  proper  substitute 
for  it,  in  any  language,  in  ink  or  pencil.  A  name  may  be  signed  or 
indorsed  by  a  mark ;  and,  though  usually  written  at  the  bottom,  it 
may  be  sufficient  if  written  in  the  body  of  the  note ;  as,  "  I,  A  B, 
promise,"  <fec. ;  unless  it  can  be  shown  that  the  note  was  incomplete, 
and  was  intended  to  be  finished  by  signature.  If  not  dated,  it  will 
be  considered  as  dated  when  it  was  made ;  but  a  written  date  is 
prima  facie  evidence  (this  means  evidence  which  may  be  overcome 
by  opposite  and  better  evidence,  but  until  so  overcome  is  sufficient) 
of  the  time  of  making.  The  amount  is  usually  written  in  figures  at 
the  corner  or  bottom.  If  the  suni  is  written  at  length  in  the  body, 
and  also  in  figures  at  the  corner,  the  written  words  control  the 
figures,  and  evidence  is  not  admissible  to  show  that  the  figures  were 


FORM  OF  A  NOTE.  161 

right  and  the  words  inaccurate.  But  in  an  American  case,  a  prom- 
issory note,  expressed  to  be  for  "  thee  hundred  dollars,"  and  in 
figures  in  the  margin,  $300,  was  held  to  be  a  good  note  for  three 
hundred  dollars,  if  the  maker  when  he  signed  it  intended  "  three  " 
when  he  wrote  "  thee  ;  "  and  whether  such  was  his  intention  was  a 
question  for  the  jury.  And  the  omission  of  such  a  word  as  "  dol- 
lars," or  "  pounds,"  or  "  sterling,"  may  be  supplied,  if  the  meaning 
of  the  instrument  is  quite  clear. 

It  has  been  just  said  that  any  contingency  apparent  on  the  face 
of  the  instrument  prevents  it  from  being  a  negotiable  note.  Hence 
it  is  not  safe  to  write  in  the  body  of  the  note,  or  in  connection  with 
the  promise,  any  condition  or  contingency.  But,  if  what  is  so 
written  in  no  way  affects  the  promise  itself,  the  note  may  still  be 
negotiable.  , 

Thus,  in  some  parts  of  this  country,  persons  who  sell  a  machine, 
or  other  thing,  on  a  credit,  sometimes  take  a  promissory  note  pay- 
able to  the  seller  or  order,  and  containing  an  additional  clause, 
providing,  that,  until  the  note  is  paid,  the  property  in  the  thing 
sold  (or  the  ownership  of  it)  shall  be  and  remain  in  the  seller 
Such  notes  are  often  made  in  the  following  form :  — 


(67.) 

Form  of  a  Note  given  for  a  Chattel  sold,  wWi  a  Condition  pre- 
serving the  Ownership  of  the  Seller. 

$  {Place  and  date)  18 

On  the  day  of  18      the  subscriber    whose  P.  O. 

is  ,  County  of  and  State  of  , 

promise  to  pay  ,  or  order  dollars  at  the  First 

National  Bank  in  with  interest  at  per  cent  per  annum  until 

paid.     And  it  is  further  agreed  that  the  title  to  the  (reaper)  for  which  this  note  is 
given  shall  remain  in  said  (the  seller)  until  this  note  is  fufly  paid ;  and,  if  not 

paid  when  due,  I  will  pay  all  expenses  incurred  in  collecting. 

Value  received 
( Witness.)  (Signature.) 

On  the  back  of  this  note  is  sometimes  the  following  statement :  — 


162  NOTES  OF  HAND,   BILLS  OF  EXCHANGE,   ETC. 

Statement  made  for  the  Purpose  of  obtaining  Credit. 

I  own  acres  of  land  in  my  own  name  in  the  Town  of 

County  of  and  State  of  which  is  worth  at  a  fair 

valuation,  $ 

It  is  not  incumbered  by  mortgage  or  otherwise,  except  the  amount  of  $ 

and  the  title  is  perfect  in  me  in  all  respects.    I  have  stock  and  personal 
property  to  the  amount  of  $  over  and  above  my  debts  and  liabilities. 

The  above  property  being  worth  over  and  above  my  debts,  liabilities  and 
exemptions  at  least  FIVE  TIMES  the  amount  of  the  within  note. 

The  question  has  arisen  whether  such  a  note  is  negotiable.  Sup- 
pose the  seller  of  the  chattel,  who  is  payee  of  the  note  sells  the  note 
and  indorses  it  for  value  to  an  innocent  indorsee ;  then  the  buyer 
finds  that  he  was  cheated,  and  puts  in  this  defence  of  fraud  when  he 
is  sued  on  the  note  by  the  indorser.  He  can  make  this  defence  if 
this  note  be  not  negotiable  ;  but  he  cannot  make  it  if  it  be  negotiable. 
I  should  say  it  was  negotiable  ;  and  that  the  only  effect  of  the  con- 
dition or  provision  annexed  to  the  promise,  was,  that  it  operated 
much  as  a  mortgage  of  the  thing,  by  the  buyer,  back  to  the  selhr, 
to  secure  the  payment. 

2.  The  Payee  must  be  designated.  —  The  payee  should  be  dis- 
tinctly named,  unless  the  bill  or  note  be  made  payable  to  beaier. 
If  it  can  be  gathered  from  the  instrument,  by  a  reasonable  or 
necessary  construction,  who  is  the  payee,  that  is  enough.  The  note 
may  be  made  payable  to  the  promisor  or  his  order ;  that  is,  a  man 
may  say,  I  promise  to  pay  to  my  own  order;  and  such  note  is 
nothing  until  the  promisor  not  only  signs  it,  but  indorses  it. 

A  note  indorsed  in  blank  is  always  transferable  by  delivery,  just 
as  if  it  were  made  payable  to  bearer ;  because  any  holder  may  write 
over  the  indorsement  an  order  to  pay  to  himself.  Indorsements  are 
either  indorsements  in  blank,  by  which  is  meant  the  name  of  the 
indorser  and  nothing  more,  or  indorsements  in  full,  which  are  so 
called  when  over  the  name  of  the  indorser  is  written, "  pay  to  A  B." 
(By  A  B  we  mean  the  name  of  the  person  to  whom  the  note  or  bill  is 
indorsed.)  These  two  kinds  of  indorsements  are  fully  explained 
subsequently  in  section  VI.  of  this  chapter.  A  note  to  the  order  of 
the  promisor  himself,  and  indorsed  by  him  in  blank,  is  therefore 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE.  163 

the  same  thing  as  a  note  to  bearer.  But  it  is  quite  commonly 
used  in  our  mercantile  cities,  because  the  holder  can  always  pass  it 
away  without  indorsing  if  he  chooses,  or  can  put  his  name  on  it  as 
second  indorser  if  he  likes  to.  If  the  indorsee  be  named,  and  the  note 
get  into  the  possession  of  a  wrong  person  of  the  same  name,  this  per- 
son neither  has  iior  can  give  a  title  to  it.  If  the  name  be  spelt  wrong, 
evidence  of  intention  is  receivable.  If  a  father  and  son  have  the 
same  name,  and  either  of  them  has  possession  of  the  note  and  indorses 
it,  this  would  be  evidence  of  his  rightful  ownership. 

If  neither  payable  to  bearer,  nor  to  the  maker's  or  drawer's  order, 
nor  to  any  other  person,  it  would  be  an  incomplete  and  invalid 
instrument. 

A  note  to  a  fictitious  payee,  with  the  same  name  indorsed  by  the 
maker,  would  undoubtedly  be  held  to  be  the  maker's  own  note, 
either  payable  to  bearer,  or  to  himself  or  order,  by  another  name, 
and  so  indorsed.  If  a  blank  be  left  in  a  bill  for  the  payee's  name,  a 
bond  fide  holder  may  fill  it  with  his  own,  the  issuing  of  the  bill  in 
blank  being  an  authority  to  a  bond  fide  holder  to  insert  the  name. 
And  if  the  name  of  the  payee  be  not  the  name  of  a  person,  as  if  it 
be  the  name  of  a  ship,  the  instrument  is  payable  to  bearer.  A  note 
payable  to  different  persons  in  the  alternative,  that  is,  to  one  or 
the  other  of  them,  is  not  a  good  promissory  note.  A  bill  or  note 
"to  the  order  of"  any  person  is  the  same  as  if  to  him  "or"  his 
order,"-*  and  may  be  sued  by  him  without  indorsement. 

3.  Of  Ambiguous  and  Irregular  Instruments.  —  The  law  in  rela- 
tion to  protest  and  damages  makes  it  sometimes  important  to  distin- 
guish between  a  promissory  note  and  a  bill  of  exchange,  because,  by 
law,  a  foreign  bill  of  exchange,  if  unpaid,  should  be  protested,  but  not 
a  promissory  note ;  but  it  is  a  common  practice  to  protest  promis- 
sory notes  when  they  are  not  paid.  The  rule  in  general  is,  that,  if 
an  instrument  be  so  ambiguous  in  its  terms  that  it  cannot  be 
certainly  pronounced  one  of  these  to  the  exclusion  of  the  other, 
ttie  holder  may  elect  and  treat  it  as  either.  As  if  written,  "  Value 
received,  in  three  mouths  from  date,  pay  the  order  of  n.  L.  $500. 
(Signed)  A.  B. ; "  and  an  address  or  memorandum  at  the  bottom, 
"  At  Messrs.  E.  F.  &  Co." 


164  NOTES  OP  HAND,   BILLS   OF  EXCHANGE,   ETC. 

4.  Of  Bank-Notes.  —  Bank-notes  or  bank-bills  are  promissory  notes 
of  a  bank,  payable  to  bearer ;  and,  like  all  notes  to  bearer,  the  prop- 
erty in  them  passes  by  delivery.     They  are  intended  to  be  used  as 
money  ;  and,  while  a  finder,  or  one  who  steals  them,  has  no  title  him- 
self against  the  owner,  still,  if  he  passes  them  away  to  a  bond  fide 
holder,  that  is,  a  holder  for  value  without  notice  or  knowledge,  such 
owner  holds  them  against  the  original  owner.    And  if  the  bank  pays 
them  in  good  faith  on  regular  presentment,  the  owner  has  no  claim. 
They  pass  by  a  will  bequeathing  money.     They  are  a  good  tender, 
unless  objected  to  at  the  time  because  not  money.     Forged  bills, 
given  in  payment,  are  a  mere  nullity.     Bills  of  a  bank  which  has 
failed,  but  of  which  the  failure  is  unknown  to  both  parties,  are  now, 
generally,  put  on  the  footing  of  forged  or  void  bills.     But  if  the 
receiver  of  them,  by  holding  them,  and  by  a  delay  of  returning  or 
giving  them  up,  injures  the  payer  and  impairs  his  opportunity  or 
means  of  idemnity,  the  receiver  must  then  lose  them. 

5.  Of  Checks  on  Banks.  —  A  check  on  a  bank  is  undoubtedly  a 
bill  of  exchange ;  but  usage  and  the  nature  of  the  case  have  intro- 
duced some  important  qualifications  of  the  general  law  of  bills  in  its 
application  to  checks.     A  check  requires  no  acceptance,  because  a 
bank,  after  a  customary  or  reasonable  time  has  elapsed  since  deposit, 
and  while  still  in  possession  of  funds,  is  bound  to  pay  the  checks  of 
the  depositors.     The  drawer  of  a  check  is  not  a  surety,  as  is  the 
drawer  of  a  bill,  but  a  principal  debtor,  like  the  maker  of  a  note. 
Nor  can  a"  drawer  complain  of  any  delay  whatever  in  the  presentment ; 
for  it  is  an  absolute  appropriation,  as  between  the  drawer  and  the 
holder,  to  the  holder  of  so  much  money  in  the  banker's  hands  ;  there 
it  may  lie  at  the  holder's  pleasure.    But  delay  is  at  the  holder's  risk  ; 
for  if  the  bank  fails  after  he  could  have  got  his  money  on  the  check, 
the  loss  is  his.     If  the  bank  before  he  presents  his  check  pay  out  all 
the  money  of  the  drawer  on  other  checks,  he  may  then  look  to  the 
drawer. 

If  one  who  holds  a  check  as  payee,  or  otherwise,  transfers  it  to 
another,  he  has  a  right  to  insist  that  the  check  shall  be  presented  in 
the  course  of  the  banking  hours  of  that  day,  or  at  farthest  the  next ; 
that  is,  he  is  not  responsible  for  the  failure  of  the  bank  to  pay,  unless 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE.  165 

it  is  iio  presented,  provided  it  would  then  have  been  paid.  And  if 
the  party  receiving  the  check  live  elsewhere  than  where  the  hank  is, 
it  seems  that  he  should  send  it  for  collection  the  next  day ;  and  if  to 
an  agent,  the  agent  should  present  it,  at  latest,  in  the  course  of  the 
day  after  he  receives  it.  If  the  check  be  drawn  when  the  drawer 
neither  has  funds  in  the  bank,  nor  has  made  any  arrangement  by 
which  he  has  a  right  to  draw  the  check,  the  drawing  it  is  a  fraud, 
and  the  holder  may  bring  his  action  at  once  against  the  drawer, 
without  presentment  or  notice. 

Checks  are  seldom  accepted.  But  they  are  often  marked  by  the 
bank  as  good ;  and  this  binds  the  bank  as  an  acceptor. 

Checks  are  usually  payable  to  bearer,  but  may  be  and  often  are 
drawn  payable  to  a  payee  or  his  order ;  for  this  guards  against  loss 
or  theft,  because  the  check  will  not  be  paid  unless  the  payee  writes 
his  name  on  it ;  and  it  gives  to  the  drawer,  when  the  check  is 
paid  and  returned  by  the  bank  to  him,  what  is  the  same  as  the 
receipt  of  the  payee.  Generally,  a  check  is  not  payment  until 
it  is  cashed ;  then  it  is  payment  if  the  money  was  paid  to  the  credit- 
or, or  the  check  had  passed  through  his  hands.  A  bank  cannot 
maintain  a  claim  for  money  lent  and  advanced,  merely  by  showing 
the  defendant's  check  paid  by  them,  because  the  general  presump- 
tion is,  that  the  bank  paid  the  check  because  it  was  drawn  by  a 
depositor  against  funds. 

While  the  death  of  a  drawer  countermands  his  check,  if  the  bank 
pay  it  before  notice  of  the  death  reaches  them,  they  are  discharged. 
This  would  seem  to  be  almost  a  necessary  inference  from  the 
general  purpose  of  banks  of  deposit,  and  the  use  which  merchants 
make  of  them. 

If  a  bank  pay  a  forged  check,  it  is  so  far  its  own  loss,  that  the 
bank  cannot  charge  the  money  to  the  depositor  whose  name  was 
forged.  But  the  bank  could  recover  the  money  back  from  one  who 
presented  a  forged  check,  and  was  paid,  provided  the  payee,  if  inno- 
cent, loses  no  opportunity  of  indemnity  in  the  mean  time,  and  can 
be  put  in  as  good  a  position  as  if  the  bank  had  refused  to  pay  it. 
But  if  somebody  must  lose,  the  bank  should,  because  it  is  the  duty 
of  the  bank  to  know  the  writing  of  its  own  depositors.  If  it  pay  a 
check  of  which  the  amount  has  been  falsely  and  fraudulently  iu 


166  NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC 

creased,  it  can  charge  the  drawer  only  with  the  original  amount. 
But  if  the  drawer  himself  causes  or  facilitates  the  forgery,  as  by  so 
carelessly  writing  it,  or  leaving  it  in  such  hands,  that  the  forgery  or 
alteration  is  easy,  so  that  it  may  be  called  his  fault,  and  the  bank  is 
innocent,  then  the  loss  falls  on  the  drawer.  If  many  persons,  not 
partners,  join  in  a  deposit,  they  must  join  in  a  check  ;  but  if  one  or 
more  abscond,  a  court  of  equity  will  permit  the  remainder  to  draw 
the  money. 

6.  Of  Accommodation  Paper.  —  An  accommodation  bill  or  note  is 
one  for  which  the  acceptor  or  maker  has  received  no  consideration, 
but  lias  lent  his  name  and  credit  to  accommodate  the  drawer,  payee, 
or  holder.     Of  course  he  is  bound  to  all  other  parties,  precisely  as 
if  there  were  a  good  consideration  ;  for,  otherwise,  it  would  not  be 
an  effectual  loan  of  credit.     But  he  is  not  bound  to  the  party  whom 
he  thus  accommodates  ;  on  the  contrary,  that  party  is  bound  to  take 
up  the  paper,  or  to  provide  the  accommodation  acceptor,  or  maker,  or 
indorscr,  with  funds  for  doing  it,  or  to  indemnify  him  for  taking  it 
up.     And  if,  before  the  bill  or  note  is  due,  the  party  accommodated 
provides  the  party  lending  his  credit  with  the  necessary  funds,  he 
cannot  recall  them ;  and  if  he  becomes  bankrupt,  they  remain  the 
property  of  the  accommodation  acceptor,  or  maker,  who,  if  sued  on 
the  bill  or  note,  can  charge  the  party  accommodated  with  the  ex- 
pense of  defending  the  suit,  even  if  the  defence  were  unsuccessful, 
if  he  had  any  reasonable  ground  of  defence,  because  the  defence 
was  for  the  benefit  of  the  party  accommodated  ;  inasmuch  as  he 
must  repay  the  accommodation  party  if  he  pays  the  bill  or  note. 

7.  Of  Foreign  and  Inland  Bills,  —  Bills  of  exchange   may  be 
foreign  bills,  or  inland  bills.     Foreign  bills   are   those  which   are 
drawn  or  payable  in  a  foreign  country ;  and  for  this  purpose,  each 
of  our  States  is  foreign  to  the  others.     Inland  bills  are  drawn  and 
payable  at  home.     Every  bill  is,  on  its  face,  an  inland  bill,  unless  it 
purports  to  be  a  foreign  bill.     If-  foreign  on  its  face,  evidence  is 
admissible  to  show  that  it  was  drawn  at  home.     If  a  bill  be  drawn 
and  accepted  here,  but  afterwards  actually  signed  by  the  drawer 
abroad,  it  is  a  foreign  bill.     If  a  foreign  bill  be  not  accepted,  or  to 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE.  167 

not  paid  at  maturity,  it  should  at  once  be  protested  by  a  notary- 
public.  Inland  bills  are  generally,  and  promissory  notes  frequently, 
protested ;  but  this  is  not  generally  required  by  the  law.  The 
holder  of  a  foreign  bill,  after  protest  for  non-payment,  or  for  non- 
acceptance,  may  sue  the  drawer  and  indorser,  and  recover  the  face 
of  the  bill,  and,  in  addition  thereto,  his  damages,  which  damages  on 
protest  are  generally  adjusted  in  this  country  by  various  statutes,  — 
which  give  greater  damages  as  the  distance  is  greater ;  and  an 
established  usage  would  supply  the  place  of  statutes  if  they  were 
wanting. 

8.  Of  the  Law  of  Place.  —  The  different  States  of  the  Union,  are, 
as  to  questions  arising  under  Mercantile  Law,  foreign  countries  as  to 
each  other.  Important  questions  sometimes  arise  in  the  case  of 
foreign  bills  (as  well  as  in  some  other  cases),  dependent  upon  what 
is  called  the  Law  of  Place,  the  Latin  phrase  for  which,  Lex  Loci,  is 
often  used.  In  general,  every  contract  is  to  be  governed  by  the  law 
of  the  place  where  it  is  made.  Thus,  if  a  bill  is  drawn  in  France, 
and  there  indorsed  in  a  way  which  is  sufficient  here,  but  insufficient 
there,  the  indorsement  would  here  be  held  void.  But  if  a  contract 
entered  into  in  one  place  is  to  be  performed  in  another,  as  in  the 
case  of  a  note  dated,  or  a  bill  drawn,  in  one  State,  but  payable  in 
another,  the  prevailing  rule  is,  that  the  law  of  the  place  where  the 
note  is  payable  construes  and  governs  the  contract.  Therefore, 
if  a  bill  be  drawn  in  England,  payable  in  France,  the  protest  and 
notice  of  dishonor  must  be  regulated  by  the  law  of  France.  But 
one  who  makes  such  a  note  may  elect,  for  many  purposes,  which 
law  shall  govern  it.  Thus,  if  he  makes  it  in  New  York,  and  it  is 
payable  in  Boston,  he  may  promise  to  pay  the  legal  interest  of  New 
York,  and  will  be  bound  to  this  payment  in  Boston,  although  the 
legal  interest  in  Boston  is  less ;  but  if  there  be  no  such  express 
promise,  the  interest  payable  will  be  that  of  the  place  where  the 
note  is  payable. 

While  the  law  of  the  place  of  the  contract  interprets  and  con- 
strues it  as  a  debt,  the  law  of  the  place  where  it  is  put  in  suit  — 
tfhich  is  called  the  Law  of  the  Forum,  or  Court  —  determines  all 
questions  as  to  remedy  ;  that  is,  all  questions  which  relate  to  the 


168  NOTES  OF  HAND,  BILLS  OF  EXCHANGE,   ETC. 

legal  means  of  recovering  the  debt.  Thus,  in  general,  the  statutes 
of  limitation  of  the  place  of  the  court  are  applied.  But  if  a 
cause  of  action  relating  to  any  special  subject-matter  which  has  a 
definite  location,  as  a  parcel  of  land  has,  be  barred  by  a  statute  of 
limitations  where  the  subject-matter  is  situated,  it  is  barred  every- 
where. A  promisor,  not  subject  to  arrest  in  the  country  where  the 
note  is  made,  may  be  arrested  under  the  laws  of  the  country  where 
the  note  is  sued. 

It  will  always  be  presumed,  in  the  absence  of  testimony,  that  the 
law  of  a  foreign  country  is  the  same  with  that  of  the  country  in 
which  the  suit  is  brought.  If  a  difference  in  this  respect  is  a  ground 
of  defence,  or  of  action,  it  must  be  proved  by  evidence. 


SECTION  IIL 

THE  CONSIDERATION  OF  NEGOTIABLE  PAPER. 

I.  Exception  to  the  Common  Law  Rule,  in  the  Case  of  Negotiable 
Paper.  —  By  the  common  law  of  England  and  of  this  country,  as 
we  have  seen,  no  promise  can  be  enforced,  unless  made  for  a  con- 
sideration, or  unless  it  be  sealed.  But  bills  and  notes  payable  to 
order,  that  is,  negotiable,  are,  to  a  certain  extent,  an  exception  to 
this  rule.  Thus,  an  indorsee  cannot  be  defeated  by  the  promisor 
showing  that  he  received  no  consideration  for  his  promise  ;  because 
the  promisor  made  an  instrument  for  circulation  as  money  ;  a,nd  it 
would  be  fraudulent  to  give  to  paper  the  credit  of  his  name,  and 
then  refuse  to  honor  it.  But  as  between  the  maker  and  the  payee, 
or  between  indorser  and  indorsee,  and,  in  general,  between  any  two 
immediate  parties,  the  defendant  may  rely  on  the  want  of  considera- 
tion ;  that  is,  if  an  indorsee  sues  the  maker,  and  the  maker  says  ha 
had  no  consideration  for  the  note,  this  is  no  defence  ;  but  if  the  in- 
dorsee sues  his  indorser,  and  the  indorser  shows  that  the  indorsee 
paid  him  nothing,  this  would  be  a  good  defence  ;  and  so  it  would  be 
if  the  payee  sued  the  maker.  So,  if  a  distant  indorsee  has  notice  or 
knowledge,  when  he  buys  a  note,  that  it  was  made  without  con- 
sideration, he  cannot  recover  on  it  against  the  maker,  unless  it  was 
an  accommodation  note,  or  was  intended  as  a  gift. 


THE  CONSIDERATION  OF  NEGOTIABLE  PAPEE.  169 

Thus,  if  A,  supposing  a  balance  due  from  him  to  B,  gives  B  his 
negotiable  note  for  the  amount,  and  afterwards  discovers  that  the 
balance  is  the  other  way,  B  cannot  recover  of  A  ;  nor  can  any  third 
or  more  distant  indorsee  who  knows  these  facts  before  buying  the 
note.  But  if  A  gives  B  his  note  wholly  without  consideration,  for 
the  purpose  of  lending  him  his  credit,  or  for  the  purpose  of  making 
him  a  gift  to  the  amount  of  the  note,  and  C  buys  the  note  with  a 
full  knowledge  of  the  facts,  he  will  nevertheless  hold  A,  although  B 
could  not.  If  the  note  was  bought  honestly  for  a  fair  price,  the 
buyer  should  recover  its  whole  amount.  Every  promissory  note 
imports  a  consideration  ;  that  is,  none,  in  the  first  place,  need  be 
proved  ;  but  when  want  of  consideration  is  relied  on  in  defence,  and 
evidence  is  given  on  one  side  and  the  other,  the  burden  of  proof  is 
on  the  plaintiff  to  satisfy  the  jury  that  consideration  was  given. 

If  an  indorser,  sued  by  an  indorsee,  shows  that  the  note  was 
originally  made  in  fraud,  he  may  require  the  holder  to  prove  that 
he  paid  consideration  ;  but  if  this  be  proved,  he  must  pay  the  whole 
of  the  note,  unless  he  was  himself  defrauded  by  the  holder.  And  if 
an  accommodation  note  be  discounted  in  violation  of  the  agreement 
of  the  party  accommodated,  the  holder  can  still  recover,  provided  ho 
received  the  note  in  good  faith,  and  for  valuable  consideration. 

2,  Of  "  Value  Received."  —  "  Value  received  "  is  usually  written, 
and  therefore  should  be;  but  is  not  necessary.     If  not  written,  it 
will  be  presumed  by  the  law,  or  may  be  supplied  by  the  plaintiff's 
proof.     If  expressed,  it  may  be  denied  by  the  defendant,  and  dis- 
proved.    And  if  a  special  consideration  be  stated  in  the  note,  the 
defendant  may  prove  that  there  was  no  consideration,  or  that  the 
consideration  was  different.     If  "  value  received  "  be  written  in  a 
note,  it  means  received  by  the  maker  from  the  payee ;  if  the  note 
be  payable  to  the  bearer,  it  means  received  by  the  maker  from  the 
holder.      In  a  bill,  "value   received"  means  that  the  value  was 
received  from  the  payee  by  the  drawer.     But  if  the  bill  be  payable 
to  the  drawer's  own  order,  then  it  means  received  by  the  acceptor 
from  the  drawer. 

3,  What  the  Consideration  may  be,  —  A  valuable  consideration 


170  NOTES   OF  HAND,   BILLS  OF  EXCHANGE,   ETC. 

may  be  either  any  gain  or  advantage  to  the  promisor,  or  any  loss  or 
injury  sustained  by  the  promisee  at  the  promisor's  request.  A  pre- 
vious debt,  or  a  fluctuating  balance,  or  a  debt  due  from  a  third 
person,  might  be  a  valuable  consideration.  So  is  a  moral  considera- 
tion, if  founded  upon  a  previous  legal  consideration  ;  as,  where  one 
promises  to  pay  a  debt  barred  by  the  statute  of  limitations,  or  by 
infancy.  But  a  merely  moral  consideration,  as  one  founded  upon 
natural  love  and  affection,  or  the  relation  of  parent  and  child,  is  no 
legal  consideration. 

No  consideration  is  sufficient  in  law  if  it  be  illegal  in  its  nature  ; 
and  it  may  be  illegal  because,  first,  it  violates  some  positive  law,  as, 
for  example,  the  Sunday  law,  or  the  law  against  usury.  Secondly, 
because  it  violates  religion  or  morality,  as  an  agreement  for  future 
illicit  cohabitation,  or  to  let  lodgings  for  purposes  of  prostitution,  or 
an  indecent  wager ;  for  any  bill  or  note  founded  upon  either  of 
these  would  be  void.  Thirdly,  if  distinctly  opposed  to  public 
policy ;  as  an  agreement  in  restraint  of  trade,  or  injurious  to  the 
revenue,  or  in  restraint  of  marriage,  or  for  procurement  of  mar- 
riage, or  suppressing  evidence,  or  withdrawing  a  prosecution  for 
felony  or  public  misdemeanor. 


SECTION  IV. 

THE    RIGHTS    AND    DUTIES    OF    THE    MAKER. 

THE  maker  of  a  note  or  the  acceptor  of  a  bill  is  bound  to  pay  the 
same  at  its  maturity,  and  at  any  time  thereafter,  unless  the  action 
be  barred  by  the  statute  of  limitations,  or  he  has  some  other  defence 
under  the  general  law  of  contracts.  As  between  himself  and  the 
payee  of  the  note  or  bill,  he  may  make  any  defences  which  he  could 
make  on  any  debt  arising  from  simple  contract ;  as  want  or  failure 
of  consideration ;  payment,  in  whole  or  in  part ;  set-off ;  accord  and 
satisfaction ;  or  the  like.  The  peculiar  characteristics  of  negotiable 
paper  do  not  begin  to  operate,  so  to  speak,  until  the  paper  has  passed 
into  the  hands  of  third  parties.  Then,  the  party  liable  on  the  note 
or  bill  can  make  none  of  these  defences,  unless  the  time  or  manner 


THE  EIGHTS  AND  DUTIES  OF  THE  HOLDEE.  171 

in  which  it  came  into  the  possession  of  the  holder  lays  him  open  to 
these  defences.  But  the  law  on  this  subject  may  better  be  pre- 
sented in  our  next  section. 


SECTION  V. 

RIGHTS  AND    DUTIES   OF   THE    HOLDER   OF   NEGOTIABLE    PAPER. 

1,  What  a  Holder  may  do  with  a  Bill  or  Note.  —  An  indorsee  has 
A  right  of  action  against  all  whose  names  are  on  the  bill  when  he 
received  it.  And  if  one  delivers  a  bill  or  note  which  he  ought  to 
indorse  and  does  not,  the  holder  has  an  action  against  him  for  not 
indorsing,  or  may  proceed  in  a  court  of  equity  to  compel  him  to  in- 
dorse. If  a  bill  comes  back  to  a  previous  indorser,  he  may  strike 
out  the  intermediate  indorsements  and  sue  in  his  own  name,  as 
indorsee ;  but  he  has,  in  general,  no  remedy  against  the  intermedi- 
ate parties,  because,  if  he  made  them  pay  as  indorsers  to  him,  they 
would  make  him  pay  as  indorser  to  them.  If,  however,  the  circum- 
stances are  such  that  they,  if  compelled  to  pay,  would  have  no  right 
against  him  as  an  indorser  to  them,  as,  for  example,  if  he  indorsed 
it  "  without  recourse,"  then  he  may  have  a  claim  against  them. 

The  holder  of  a  bill  indorsed  and  deposited  with  him  for  collec- 
tion, or  only  as  a  trustee,  can  use  it  only  in  conformity  with  the 
trust.  And  if  the  indorsement  express  that  it  is  to  be  collected  for 
the  indorser's  use,  or  use  any  equivalent  language,  this  is  notice  to 
ar.y  one  who  discounts  it;  and  the  party  discounting  the  paper 
against  this  notice  will  be  obliged  to  deliver  the  note,  or  pay  its  con- 
tents if  collected,  to  the  indorser.  Thus,  Mr.  Sigourney,  a  merchant 
in  Boston,  remitted  to  "Williams,  a  London  banker,  for  collection,  a 
bill  of  exchange  indorsed  by  him,  and  over  his  name  was  written, 
"  Pay  to  Williams  or  order  for  my  use."  Williams  had  the  bill  dis- 
counted for  his  own  benefit  by  his  bankers,  and  failed  ;  and  the 
English  court  held  that  the  indorsement  showed  that  the  bill  did  not 
belong  to  Williams,  and  that  the  discounters  had  no  right  to  dis- 
count it  for  him ;  and  they  were  obliged  to  pay  the  amount  of  it 

to  Sigourney. 

13 


172  NOTES  OP  HAND,  BILLS  OF  EXCHANGE,   ETC. 

&  Of  a  Transfer  after  Dishonor  of  Negotiable  Paper.  —  So  long 
as  a  note  remains  due,  everybody  has  a  right  to  believe  that  it  has 
not  been  paid,  and  will  be  paid  at  maturity,  and  may  purchase  it  in 
that  belief.  But  as  soon  as  it  is  overdue,  the  date  shows  it,  and 
every  person  must  know  that  it  is  either  paid,  and  so  extinguished, 
or  that  it  has  not  been  paid,  and  therefore  is  dishonored,  and  that 
there  may  be  good  reasons  why  it  was  not  paid,  or  good  defences 
against  it.  He  therefore  now  takes  it  at  his  own  peril ;  and  there- 
fore a  holder  who  took  the  note  after  it  became  due  is  open  to  many 
of  the  defences  which  the  promisor  could  have  made  against  the 
party  from  whom  the  holder  took  it ;  because,  having  notice  that 
the  bill  or  note  is  dishonored,  he  ought  to  have  ascertained  whether 
any,  and,  if  so,  what  defence  could  be  set  up. 

So,  too,  if  an  indorsee  takes  the  note  or  bill  before  it  is  due,  but 
with  notice  or  knowledge  of  fraud  or  other  good  defence  which  could 
be  made  against  his  indorser  if  he  sued  it,  it  is  a  general  rule  that 
the  same  defence  may  be  made  against  him. 

A  promissory  note  payable  on  demand  is  considered  as  intended 
to  be  a  continuing  security,  and  therefore  as  not  overdue,  unless 
very  old  indeed,  without  some  evidence  of  demand  of  payment  and 
refusal.  But  it  is  not  so  with  a  check  ;  for  this  should  be  presented 
without  unreasonable  delay. 

3.  Of  Presentment  for  Acceptance.  —  It  is  most  important  to  the 
holder  of  negotiable  paper  to  know  distinctly  what  his  dutie?  are  in 
relation  to  presentment  for  acceptance  or  payment,  and  notice  to 
others  interested  in  case  of  non-acceptance  or  non-payment 

It  is  always  prudent  for  the  holder  of  a  bill  to  proseut  it  for 
acceptance  without  delay ;  for  if  it  be  accepted,  he  has  new  security ; 
if  not,  the  former  parties  are  immediately  liable  ;  and  it  is  but  just 
to  the  drawer  to  give  him  as  early  an  opportunity  as  may  be  to  with- 
draw his  funds  or  obtain  indemnity  from  a  debtor  who  will  not  honor 
his  bills.  And  if  a  bill  is  payable  at  sight,  or  at  a  certain  period 
after  sight,  there  is  not  only  no  right  of  action  against  anybody 
until  presentment,  but,  if  this  be  delayed  beyond  a  reasonable  time, 
the  holder  loses  his  remedy  against  all  previous  parties.  And 
although  the  question  of  reasonable  time  is  generally  one  only  of 


THE  EIGHTS  AND  DUTIES  OF  THE  HOLDER.  173 

law,  yet,  in  this  connection,  it  is  treated  as  so  far  a  question  of  fact, 
that  it  is  submitted  to  the  jury.  There  is  no  certain  rule  determin- 
ing what  is  reasonable  time  in  this  respect.  If  a  bill  of  exchange  be 
payable  on  demand,  it  is  not  like  a  promissory  note,  but  must  be  pre- 
sented within  a  reasonable  time,  or  the  drawer  will  be  discharged. 
A  holder  may  put  a  bill  payable  after  sight  into  circulation,  without 
presenting  it  himself;  and  in  that  case,  if  a  subsequent  holder 
presents  it,  a  longer  delay  in  presentment  would  be  allowed  tnan 
if  the  first  holder  had  kept  it  in  his  own  possession. 

The  presentment  should  be  made  during  business  hours  ;  but  in 
this  country  they  extend  through  the  day  and  until  evening,  except- 
ing in  the  case  of  banks.  Any  distinct  usage  established  where  the 
presentment  is  made  would  probably  be  received  in  evidence,  and 
permitted  to  affect  the  question. 

Ill  health,  or  other  actual  impediment  without  fault,  may  excuse 
delay  on  the  part  of  the  holder ;  but  the  request  of  the  drawer  to 
the  drawee  not  to  accept  does  not  excuse  non-presentment  for  ac- 
ceptance. 

Presentment  for  acceptance  should  be  made  to  the  drawee  him- 
self, or  to  his  agent  authorized  to  accept.  And  when  it  is  presented, 
the  drawee  may  have  a  reasonable  time  to  consider  whether  he  will 
accept,  during  which  time  the  holder  is  justified  in  leaving  the  bill 
with  him.  And  this  time  would  be  as  much  as  twenty-four  hours, 
unless  the  mail  goes  out  before.  And  if  the  holder  gives  more  than 
twenty-four  hours  for  this  purpose,  or  the  mail  goes  out  before,  he 
should  inform  the  previous  parties  of  it.  If  the  drawee  has  changed 
his  residence,  the  holder  should  use  due  diligence  to  find  him ;  and 
what  constitutes  due  or  reasonable  diligence  is  a  question  of  fact  for 
a  jury.  And  if  he  be  dead,  the  holder  should  ascertain  who  is  his 
personal  representative,  if  he  has  one,  and  present  the  bill  to  him. 
If  the  bill  be  drawn  upon  the  drawee  at  a  particular  place,  it  is  re- 
garded as  dishonored  if  the  drawee  has  absconded,  so  that  the  bill 
cannot  be  presented  for  acceptance  at  that  place. 

4,  Of  Presentment  for  Demand  of  Payment. — The  next  question 
relates  to  tin  duty  of  demanding  payment ;  and  here  the  law  is 
much  the  same  in  respect  both  to  notes  and  to  bills. 


174  NOTES  OF  HAND,   BILLS   OF  EXCHANGE,  ETC. 

The  universal  rule  of  the  law-merchant  is,  that  the  indorsers  of 
negotiable  paper  are  supposed  to  agree  to  pay  it  only  if  the  maker 
or  previous  indorsers  do  not,  and  provided  due  measures  are  taken 
by  the  holder  to  get  it  paid  by  those  who  ought,  in  the  first  place,  to 
pay  it.  Every  holder  of  negotiable  paper  can  hold  it  as  long  as  he 
likes,  and  not  lose  his  claim  against  the  maker  of  a  note,  or  the  ac- 
ceptor of  a  bill,  unless  he  holds  it  more  than  six  years,  and  the  Sta- 
tute of  Limitations  bars  his  claim.  The  reason  is,  that  the  maker 
or  acceptor  promises  directly,  and  not  merely  to  pay  if  another  does 
not.  But  every  indorser  of  a  note  or  bill,  and  every  drawer  of  a 
bill,  only  promises  to  pay  if  a  maker  or  acceptor  or  some  previous 
indorser  does  not.  If  there  is  a  bill  of  exchange  with  six  indorsers, 
the  last  promises  in  law  to  pay  it  only  if  the  acceptor,  the  drawer, 
and  the  five  previous  indorsers  do  not  pay.  He  has  therefore  a  right 
that  a  demand  according  to  law  should  be  made  against  every  one 
of  these  persons,  and  that  their  refusal  to  pay  should  be  notified  to 
him,  forthwith,  so  that  he  may  secure  himself  if  he  can.  And  the 
law-merchant  is  very  rigorous  and  precise  in  defining  what  demand 
should  be  made  by  the  holder,  and  when  and  how  demand  should  be 
made  on  every  prior  party,  in  order  to  hold  any  subsequent  party ; 
and  also  as  to  what  notice  of  the  demand  and  refusal  of  the  prior 
party  should  be  given  to  any  subsequent  party  to  whom  the  holder 
looks  for  payment. 

A  demand  is  sufficient  if  made  at  the  usual  residence  or  place  of 
business  of  the  payer,  either  of  himself,  or  of  an  agent  authorized  to 
pay ;  and  this  authority  may  be  inferred  from  the  habit  of  paying, 
especially  if  the  agent  be  a  child,  a  wife,  or  a  servant.  The  demand 
should  not  be  made  in  the  street,  although  a  demand  then  would 
probably  be  held  good,  unless  objected  to  at  the  time  because  made 
there.  When  a  demand  is  made,  the  bill  or  note  should  be  exhibited ; 
and  if  lost,  a  copy  should  be  exhibited,  although  this  is  not  abso- 
lutely necessary.  And  when  the  payer  calls  on  the  holder,  and 
declares  to  him  that  he  shall  not  pay,  and  desires  him  to  give  notice 
to  the  indorsers,  this  constitutes  a  demand  and  refusal,  provided  this 
declaration  be  made  at  the  maturity  of  the  paper;  but  not  if  it  was 
made  before  maturity,  because  the  payer  may  change  his  iuiftntion. 
Bankruptcy  or  insolvency  of  the  payer  is  no  excuse  for  non-de- 


X      t 


THE  EIGHTS  AND  DUTIES  OF  THE  HOLDER.  175 

mand ;  although  the  shutting  up  of  a  bank  may  be  regarded  as  a 
refusal  to  all  their  creditors  to  pay  their  notes.  Absconding  of  the 
payer  is  generally  a  sufficient  excuse  ;  but  if  the  payer  has  shut  up 
his  house,  the  holder  must  nevertheless  inquire  after  him,  and  find 
him,  if  he  can  by  proper  efforts.  Even  in  case  of  absconding,  it  is 
always  better  to  go  through  the  formality  of  making  a  demand  at 
the  payer's  last  residence  or  place  of  business ;  and  this  is  held  neces- 
sary in  Massachusetts.  If  the  payer  be  dead,  demand  should  be 
made  at  his  house,  unless  he  have  personal  representatives,  and  in 
that  case,  of  them.  And  if  the  holder  die,  presentment  should  be 
made  by  his  personal  representatives ;  that  is,  by  his  executor  or 
administrator. 

If  the  drawer  has  no  effects  in  the  hands  of  the  drawee,  and  has 
no  arrangement  or  understanding  which  gives  him  a  right  to  draw, 
non-presentation  for  payment  is  not  a  defence  which  he  can  make  if 
sued  on  the  bill. 

Impossibility  of  presenting  a  bill  for  payment,  without  the  fault 
of  the  holder,  as  the  actual  loss  of  a  bill,  or  the  like,  will  excuse 
some  delay  in  making  a  demand  for  payment ;  but  not  more  than 
the  circumstances  require.  And  the  mere  mistake  of  the  holder  as 
to  the  time,  place,  person  or  manner,  is  no  excuse,  because  he  has 
no  right  to  make  mistakes  to  the  injury  of  other  people. 

In  this  country,  all  negotiable  paper  payable  at  a  time  certain  is 
entitled  to  grace,  which  here  means  three  days'  delay  of  payment, 
unless  it  be  expressly  stated  and  agreed  that  there  shall  be  no  grace ; 
and  a  presentment  for  payment  before  the  last  day  of  grace  is  pre- 
mature, the  note  not  being  due  until  then.  If  the  last  day  of  grace 
falls  on  a  Sunday,  or  on  a  legal  holiday,  the  note  is  due  on  the 
Saturday,  or  other  day  before  the  holiday.  But  if  there  be  no  grace, 
and  the  note  falls  due  on  a  Sunday,  or  other  holiday,  it  is  not  paya- 
ble until  the  next  day. 

Generally,  if  a  bill  or  note  be  payable  in  or  after  a  certain  num- 
ber of  days  from  date,  sight,  or  demand,  in  counting  these  days, 
the  day  of  date,  sight,  or  demand  is  excluded,  and  the  day  on 
which  it  falls  due  included.  And  the  law  would  supply  the  word 
'*from"  &c.,  if  the  word  were  not  used.  Thus,  a  note  dated 
January  1,  and  payable  in  "  twenty  days "  would  be  held  pay- 


176  NOTES  OF  HAND,   BILLS   OF  EXCHANGE,  ETC. 

able  in  twenty  days  (and  three  days'  grace)  after  the  day  of  the 
date ;  that  is  on  the  24th.  If  a  note  is  made  payable  in  one  or  more 
months,  this  means  calendar  months,  whether  shorter  or  longer.  If 
made  on  the  13th  of  December,  and  payable  in  two  months,  it  is 
payable  on  the  13th  of  February  and  grace,  that  is,  on  the  1 6th. 
But  if  so  many  days  are  named,  they  must  be  counted,  whether  they 
are  more  or  less  than  a  month.  Thus,  if  the  above  note  were  paya- 
ble in  sixty  days,  it  would  be  due  on  the  llth  and  grace,  or  on  the 
14th  of  February.  If  dated  13th  January,  and  payable  in  sixty 
days,  it  would  be  due  on  the  14th  of  March,  with  grace,  or  on  the 
17th. 

Although  payment  must  be  demanded  promptly,  that  is,  on  the 
day  on  which  it  is  due,  it  need  not  be  done  instantly ;  a  holder  has 
all  the  business-part  of  the  day  in  which  the  bill  or  note  falls  due  to 
make  his  demand  in. 

Bills  and  notes  payable  on  demand  should  be  presented  for  pay- 
ment within  a  reasonable  time.  If  said  to  be  "  on  interest,"  this 
strengthens  the  indication  that  they  were  intended  to  remain  for  a 
time  unpaid  and  un demanded.  But  to  hold  indorsers,  they  should 
still  be  presented  within  whatever  time  circumstances  may  make  a 
reasonable  time  ;  and  this  is  such  a  time  as  the  interests  and  safety 
of  all  concerned  may  require  ;  and  it  may  be  a  few  days,  or  even 
one  or  two  weeks.  A  bill  or  note  in  which  no  time  of  payment  is 
expressed  is  held  to  be  payable  on  demand.  And  evidence  to  prove 
it  otherwise  is  inadmissible. 

The  holder  of  a  check  should  present  it  at  once ;  for  the  drawer 
has  a  right  to  expect  that  he  will ;  it  should,  therefore,  be  presented, 
or  forwarded  for  presentment,  in  the  course  of  the  day  following 
that  in  which  it  was  received,  or,  upon  failure  of  the  bank,  the 
holder  will  lose  the  remedy  he  would  otherwise  have  had  against 
the  person  from  whom  he  receives  it.  If  the  drawer  of  the  check 
had  no  funds,  he  is  liable  always. 

Every  demand  of  payment  should  be  made  at  the  proper  place, 
which  is  either  the  place  of  residence  or  of  business  of  the  paye^, 
and  within  the  proper  hours  of  business.  If  made  at  a  bank  aftc  r 
hours  of  business,  if  the  officers  are  there,  and  refuse  payment  fcr 
want  of  funds,  the  demand  is  sufficient. 


THE   BIGHTS  AND   DUTIES   OF  THE  HOLDER.  177 

A  note  payable  at  a  particular  place  should  be  demanded  at  that 
place  ;  and  a  bill  drawn  payable  at  a  particular  place  should  bo  de- 
manded there,  in  order  to  charge  the  drawer  of  a  bill,  and  the 
indorsers  of  a  bill  or  note.  But  in  this  country  an  action  may  be 
maintained  against  the  maker  or  acceptor  without  such  demand ; 
but  the  defendant  may  discharge  himself  of  damages  and  costs  be- 
yond the  amount  of  the  paper,  by  showing  that  he  was  ready  at  that 
place  with  funds.  If  a  note  is  payable  at  any  of  several  different 
places,  presentment  at  any  one  of  them  will  be  sufficient.  If  a  bill 
which  is  drawn  payable  generally,  be  accepted  payable  at  a  partic- 
ular place,  the  holder  may  and  should  so  far  regard  this  as  non- 
acceptance,  that  he  should  protest  and  give  notice.  But  if  this 
limited  acceptance  is  assented  to  and  received,  it  must  be  complied 
•with  by  the  holder,  and  the  bill  must  be  presented  for  payment  at 
that  place,  or  the  drawer  and  indorsers  are  discharged. 

If  payable  at  a  banker's,  or  at  the  house  or  counting-room  of  any 
person,  and  such  banker  or  person  becomes  the  owner  at  maturity, 
this  is  demand  enough  ;  and  if  there  are  no  funds  deposited  with 
him  for  the  payment,  this  is  refusal  enough.  If  any  house  be  desig- 
nated, a  presentment  to  any  person  there,  or  at  the  door  if  the  house 
be  shut  up,  is  enough. 

If  this  direction  be  not  in  the  body  of  the  note,  but  added  at  the 
close,  or  elsewhere,  as  a  memorandum,  it  is  not  part  of  the  contract, 
and  should  not  be  attended  to. 

If  the  payer  has  changed  his  residence,  he  should  be  sought  for 
with  due  diligence ;  and,  if  he  has  absconded,  it  is  better  to  make 
the  demand  at  his  last  place  of  residence  or  business. 

Where  a  bill  or  note  is  not  presented  for  payment,  or  not  pre- 
sented at  the  time,  or  to  the  person,  or  in  the  place,  or  in  the  way, 
required  by  law,  all  parties  but  the  acceptor  or  maker  are  dis 
charged,  for  the  reasons  before  stated. 

5.  Of  Protest  and  Notice.  —  If  a  bill  of  exchange  be  not  accepted 
when  properly  presented  for  that  purpose,  or  if  a  bi-ll  or  note,  when 
properly  presented  for  payment,  be  not  paid,  the  holder  has  a  further 
duty  to  perform  to  all  who  are  responsible  for  payment.  In  case  of 
non-payment  of  a  foreign  bill,  there  should  be  a  regular  protest  by 


178  NOTES  OF  HAND,   BILLS  OF  EXCHANGE,  ETC 

a  public  notary ;  but  this  is  not  strictly  necessary  in  the  case  of  an 
inland  bill,  or  a  promissory  note,  whether  foreign  or  inland  But  in 
practice,  all  bills  if  not  accepted,  and  all  bills  and  notes  if  unpaid, 
are  protected.  By  a  foreign  bill  is  meant  a  bill  drawn  in  one  State 
or  country,  and  payable  in  another.  But  notice  of  non-payment 
should  be  given  to  all  antecedent  parties,  equally,  and  in  the  same 
way,  in  the  case  of  both  bills  and  notes. 

The  demand  and  protest  must  be  made  according  to  the  laws  of 
the  place  where  the  bill  is  payable.  It  should  be  made  by  a  notary- 
public,  who  should  present  the  bill  himself;  but,  if  there  be  no 
notary-public  in  that  place  or  within  reasonable  reach,  it  may  be 
made  by  any  respectable  inhabitant  in  the  presence  of  witnesses. 

The  protest  should  be  noted  on  the  day  of  demand  and  refusal ; 
and  may  be  filled  up  afterwards,  even  so  late  as  at  the  trial. 

The  loss  of  a  bill  is  not  a  sufficient  excuse  for  not  protesting  it. 
But  a  subsequent  promise  to  pay  by  a  drawer  or  indorser  is  held  to 
imply,  or  be  equal  to,  a  previous  protest  and  notice  to  him. 

The  notarial  seal  is,  of  itself,  evidence  of  the  dishonor  of  a  foreign 
bill,  but  not  of  an  inland  bill.  And  no  collateral  statement  in  the 
certificate  is  evidence  of  the  fact  therein  stated ;  thus  the  state- 
ment by  a  notary,  that  the  drawee  refused  to  accept  or  pay  because 
he  had  no  funds  of  the  drawer,  is  no  evidence  of  the  absence  of 
such  funds. 

Notice  must  be  given  even  to  one  who  has  knowledge.  No  par- 
ticular form  is  necessary  ;  it  may  be  in  writing,  or  oral ;  all  that  is 
absolutely  essential  is,  that  it  should  designate  the  note  or  bill  with 
sufficient  distinctness,  and  state  that  it  has  been  dishonored  ;  and 
also  that  the  party  notified  is  looked  to  for  payment  ;  but  it  has  been 
held  that  the  notice  to  the  party  bound  to  pay,  when  given  by  the 
immediate  holder  of  the  bill,  sufficiently  implies  that  he  is  looked  to. 
Notice  of  protest  for  non-payment  is  sufficient  notice  to  indorsers  of 
demand  and  refusal.  How  distinctly  the  note  or  bill  should  be  de- 
scribed cannot  be  precisely  defined.  It  is  enough  if  there  be  no  s'icli 
looseness,  ambiguity,  or  misdescription  as  might  mislead  a  man  of 
ordinary  intelligence ;  and  if  the  intention  was  to  describe  the  true 
note,  and  the  party  notified  was  not  actually  misled,  this  would 
always  be  enough.  The  notice  need  not  state  for  whom  payment  is 


THE  EIGHTS  A^D  DUTIES   OF  THE  HOLDER.  179 


demanded,  nor  where  the  note  is  lying  ;  and  even  a  misstatement  in 
this  respect  may  not  be  material  if  it  do  not  actually  mislead. 

No  copy  of  the  protest  need  be  sent  to  indorsers  ;  but  information 
of  the  protest  should  be  given. 

If  the  letter  be  properly  put  into  the  post-office,  any  miscarriage 
of  the  mail  does  not  affect  the  party  giving  notice.  The  address 
should  be  sufficiently  specific.  Only  the  surname,  —  as  "  Mr. 
Ames,"  —  especially  if  sent  to  a  large  city,  would  not,  in  general,  be 
enough.  If  a  letter,  however  generally  directed,  can  be  shown  to 
have  reached  the  right  person  at  the  right  time,  it  is  sufficient. 
The  postmarks  are  strong  evidence  that  the  letter  was  mailed  at  the 
very  time  these  marks  indicate  ;  but  this  evidence  may  be  rebutted, 
that  is  contradicted.  • 

A  notice  not  only  may,  but  should,  be  sent  by  the  public  post.  It 
may,  however,  be  sent  by  a  private  messenger  ;  but  is  not  sufficient 
if  it  do  not  arrive  until  after  the  time  at  which  it  would  have  ar- 
rived by  mail.  It  may  be  sent  to  the  town  where  the  party  resides, 
or  to  another  town,  or  to  a  more  distant  post-office,  if  it  is  clear  that 
he  may  thereby  receive  the  notice  earlier.  And  if  the  notice  is  sent 
to  what  the  sender  deems,  after  due  diligence,  the  nearest  post- 
office,  this  is  enough.  If  the  parties  live  in  the  same  town,  notice 
should  not  be  sent  by  mail. 

The  notice  should  be  sent  either  to  the  place  of  business,  or  to  the 
residence,  of  the  party  notified.  But  if  one  directs  a  notice  to  be  sent 
to  himself  elsewhere  than  at  home,  it  may  be  so  sent,  and  bind  not 
only  him,  but  prior  parties,  although  time  is  lost  by  so  sending  it. 

The  notice  of  non-payment  should  be  sent  within  reasonable  time  ; 
and  in  respect  to  negotiable  paper,  the  law-merchant  defines  this 
within  very  narrow  limits.  If  the  parties  live  in  the  same  town, 
notice  must  be  given  or  sent  so  that  the  party  to  whom  it  is  sent 
may  receive  the  notice  in  the  course  of  the  day  next  after  that  in 
which  the  party  sending  has  knowledge  of  the  fact.  If  the  parties 
live  in  different  places,  the  notice  must  be  sent  as  soon  as  by  the 
first  practicable  mail  of  the  next  day,  or  the  next  mail,  if  there  be 
none  on  the  next  day. 

Each  party  receiving  notice  has  a  day,  or  until  the  next  post  after 
the  day  in  which  he  receives  it,  before  he  is  obliged  to  send  the 


180  NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETU 

notice  forward.  Thus,  if  there  be  six  indorsers,  and  the  note  is  due 
on  the  10th  of  May,  in  New  York,  and  is  then  demanded  and  un- 
paid, the  holder  may  send  it  by  any  mail  which  leaves  New  York 
on  the  llth  of  May,  to  the  last  iudorser,  wherever  he  lives ;  and  that 
indorser  may  send  it  to  the  indorser  immediately  before  him,  by  any 
mail  on  the  day  after  he  receives  it ;  and  so  may  each  of  the  parties 
receiving  notice  ;  and  all  the  parties  to  whom  notice  is  sent  in  this 
way  will  be  held.  So,  too,  a  banker,  with  whom  the  paper  is  de- 
posited for  collection,  is  considered  a  holder,  and  entitled  to  a  day 
to  give  notice  to  the  depositor,  who  then  has  a  day  for  his  notice 
to  antecedent  parties.  The  different  branches  of  one  establishment 
have  been  held  distinct  holders  for  this  purpose,  and  each  to  bo 
entitled  to  a  day.  It  should  be  «ent  by  the  first  safe  opportunity. 

Neither  Sunday  nor  any  legal  holiday  is  to  be  computed  in  reckon- 
ing the  time  within  which  notice  must  be  given. 

There  is  no  presumption  of  notice  ;  and  the  plaintiff  must  prove 
that  it  was  given,  and  was  sufficient.  Thus,  proving  that  it  was 
•given  in  "  two  or  three  days  "  is  insufficient,  if  two  would  have  been 
right,  but  three  not. 

Notice  should  be  given  only  by  a  party  to  the  instrument,  who  is 
liable  upon  it,  and  not  by  a  stranger  ;  and  it  has  been  held  that 
notice  could  not  be  given  by  a  first  indorser,  who,  not  having  been 
notified,  was  not  himself  liable.  A  notice  by  any  party  liable  will 
operate  to  the  benefit  of  all  antecedent  or  subsequent  parties  ;  that 
is,  will  hold  them  all  to  the  original  holder  of  the  note,  if  the  origi- 
nal holder  gave  notice  properly  to  the  party  nearest  to  him.  The 
notice  may  be  given  by  any  authorized  agent  of  a  party  who  could 
himself  give  notice. 

Notice  must  be  given  to  fevery  antecedent  party  who  is  to  be  held. 
And  we  have  seen  that  this  may  be  given  by  a  holder  to  the  firs', 
party  liable,  and  by  him  to  the  next,  &c.  But  the  holder  may 
always  give  notice  to  all  antecedent  parties ;  and  it  is  always  pru 
dent,  and  in  this  country,  usual,  to  do  so.  For  the  holder  loses 
all  remedy  against  all  those  who  are  discharged  by  the  failure  of 
any  one  receiving  notice  to  transmit  it  properly.  But  if  a  holder 
undertakes  to  notify  all  the  antecedent  parties,  he  must  notify  all  as 
boon  as  lie  was  obliged  to  notify  the  party  nearest  to  him ;  that  is, 


THE  EIGHTS   AND  DUTIES   OF  THE  HOLDER.  181 

the  day  after  the  dishonor  of  the  note.  "We  mean  by  this,  that  every 
party  has  a  day ;  so  that,  if  there  be  six  indorsers,  if  the  first  in- 
dorser  is  notified  on  the  seventh  day  from  the  dishonor,  it  is  enough, 
if  the  holder  took  his  day  to  notify  the  sixth  iudorser,  and  that  in- 
dorser  his  day  to  notify  the  fifth,  and  so  on.  But  the  holder  has 
nobody's  day  but  his  own  ;  and  if  he  undertakes  to  notify  all  the 
parties,  he  must  notify  them  all  on  the  first  day  after  the  non-pay- 
ment. 

Notice  may  be  given  personally  to  a  party,  or  to  his  agent  author- 
ized to  receive  notice,  or  left  in  writing  at  his  home  or  place  of 
business.  If  the  party  to  be  notified  is  dead,  notice  should  be  given 
to  his  personal  representatives.  A  notice  addressed  to  the  "  legal 
representative  of,"  &c.,  and  sent  to  the  town  in  which  the  deceased 
party  resided  at  his  death,  has  been  held  sufficient.  But  a  notice 
addressed  to  the  party  himself,  when  known  to  be  dead,  or  to  "  the 
estate  of,"  &c.,  would  not  be  of  itself  sufficient,  but  might  become  so 
witli  evidence  that  the  administrator  or  executor  actually  received 
the  notice. 

If  two  or  more  parties  are  jointly  liable  on  a  bill  as  partners, 
notice  to  oi>e  is  enough  ;  but,  if  the  indorsers  are  not  partners, 
notice  should  be  given  to  each. 

One  transferring  by  delivery,  without  indorsement,  a  note  or  bill 
payable  to  bearer,  is  not  generally  entitled  to  notice  of  non-payment, 
because,  generally,  he  is  not  liable  to  pay  such  paper ;  but  if  the 
circumstances  of  the  case  are  such  as  to  make  him  liable,  then  lie 
must  have  notice,  but  is  entitled  not  to  the  exact  notice  of  an  indors- 
er,  but  only  to  such  reasonable  notice  as  is  due  to  a  guarantor.  If, 
for  instance,  the  paper  was  transferred  as  security,  or  even  in  pay- 
ment of  a  pre-existing  debt,  this  debt  revives  if  the  bill  or  note  be 
dishonored  ;  and  therefore  there  must  be  notice  given  of  the  dishonor. 

In  general,  a  guarantor  of  a  bill  or  note,  or  debt,  is  not  entitled  to 
such  strict  and  exact  notice  as  an  iudorser  is  entitled  to,  but  only 
to  such  notice  as  shall  save  him  from  actual  injury  ;  and  he  cannot 
make  the  want  of  notice  his  defence,  unless  he  can  show  that  the 
notice  was  unreasonably  withheld  or  delayed,  and  that  he  has  actually 
sustained  injury  from  such  delay  or  want  of  notice.  If  an  indorser 
give  also  a  bond,  or  his  own  note,  to  pay  the  debt,  he  is  not  dis- 
charged from  his  bond  or  note  by  want  of  notice. 


182  NOTES  OF  HAND,   BILLS  OF  EXCHANGE,   ETC. 

In  general,  all  parties  to  negotiable  paper,  who  are  entitled  to 
notice,  are  discharged  by  want  of  notice.  The  law  presumes  them 
to  be  injured,  and  does  not  put  them  to  proof. 

The  right  to  notice  may  be  waived  by  any  agreement  to  that  effect 
prior  to  the  maturity  of  the  paper.  It  is  quite  common  for  an  in- 
dorser  to  write,  "  I  waive  notice,"  or,  "  I  waive  demand,"  or  some 
words  to  this  effect.  It  should,  however,  be  remembered,  that  these 
rights  are  independent,  and  one  does  not  imply  the  other.  A  waiver 
of  notice  of  non-payment  does  not  imply  a  waiver  of  demand ;  there- 
fore, if  an  indorser  writes  on  the  note,  "  I  waive  notice,"  still  he 
will  be  discharged  if  there  be  not  a  due  demand  on  the  maker.  And 
it  has  been  held  that  a  waiver  of  protest  is  a  waiver  of  demand,  but 
not  of  notice.  So  if  a  drawer  countermands  his  order,  the  bill 
should  still  be  presented,  but  notice  of  dishonor  need  not  be  given 
to  the  drawer.  Or,  if  a  drawer  has  no  funds,  and  nothing  equivalent 
to  funds,  in  the  drawee's  hands,  and  would  have  no  remedy  against 
the  drawee  or  any  one  else,  as  the  drawer  cannot  be  prejudiced  by 
want  of  notice,  it  is  not  necessary  to  give  him  notice.  But  the 
indorser  must  still  be  notified ;  and  a  drawer  for  the  accommodation 
of  the  acceptor  is  entitled  to  notice,  because  he  might  have  a  claim 
upon  the  acceptor. 

Actual  ignorance  of  a  party's  residence  justifies  the  delay  neces- 
sary to  find  it  out,  and  no  more  ;  and  after  it  is  discovered,  the 
notifier  has  the  usual  time. 

Death,  or  severe  illness,  of  the  notifier  or  his  agent,  is  an  excuse 
for  delay ;  but  the  death,  bankruptcy,  or  insolvency  of  the  drawee 
of  a  bill  is  no  excuse. 

As  the  right  to  notice  may  be  waived  before  maturity,  so  the  want 
of  notice  may  be  cured  afterwards  by  an  express  promise  to  pay ; 
and  an  acknowledgment  of  liability,  or  a  payment  in  part,  is  evi- 
dence, but  not  conclusive  evidence,  of  notice  ;  the  jury  may  draw 
this  conclusion  from  part  payment,  but  are  not  bound  to,  even  if  the 
evidence  be  not  rebutted.  If  the  promise  be  conditional,  and  the 
condition  be  not  complied  with,  the  promise  has  been  held  to  be  still 
evidence  of  protest.  Nor  is  it  sufficient  to  avoid  such  promise,  that 
it  was  made  in  ignorance  of  the  law ;  but  it  is  void  if  made  in 
ignorance  of  the/a<tf  of  non-notice. 


THE  BIGHTS  AND  DUTIES  OF  THE  INDORSEE.  183 

SECTION  VI. 
THE    BIGHTS    AND    DUTIES    OP    THE    ENDORSER. 

ONLY  a  note  or  bill  payable  to  a  payee  or  order  is,  strictly  speak- 
ing, subject  to  indorsement.  Those  who  write  their  names  on  the 
back  of  any  note  or  bill  are  indorsers  in  one  sense,  and  are  some- 
times called  so  ;  but  are  not  meant  in  the  law-merchant  by  the  word 
"  indorsers." 

The  payee  of  a  negotiable  bill  or  note  —  whether  he  be  also  maker 
or  not  —  may  indorse  it,  and  afterwards  any  person,  or  any  number 
of  persons,  may  indorse  it.  The  maker  promises  to  pay  to  the  payee 
or  his  order  ;  and  the  indorsement  is  an  order  on  the  maker  to  pay 
the  indorsee,  and  the  maker's  promise  is  then  to  pay  the  note  to 
him.  But  if  the  original  promise  was  to  the  payee  or  order,  this 
"  or  order,"  which  is  the  negotiable  element,  passes  over  to  the  in- 
dorsee, though  not  written  in  the  indorsement,  and  the  indorsee  may 
indorse,  and  so  may  his  indorsee,  indefinitely. 

Each  indorser,  by  his  indorsement,  does  two  things :  first,  ho 
orders  the  antecedent  parties  to  pay  to  his  indorsee  ;  and  next,  he 
engages  with  his  indorsee,  that,  if  they  do  not  pay,  he  will. 

If  the  words  "  to  order,"  or  "  to  bearer,"  are  omitted  accidental- 
ly, and  by  mistake,  they  may  be  afterwards  inserted  without  injury 
tc  the  bill  or  note  ;  and  whether  a  bill  or  note  is  negotiable  or  not, 
is  a  question  of  law. 

By  the  law-merchant,  bills  and  notes  which  are  payable  to  order 
can  be  effectually  and  fully  transferred  only  by  indorsement.  This 
indorsement  may  be  in  blank,  or  in  full.  The  writing  of  the  name 
of  a  payee,  —  either  the  original  payee  or  an  indorsee, — with  nothing 
more,  is  an  indorsement  in  blank  ;  and  a  blank  indorsement  makes 
the  bill  or  note  transferable  by  delivery,  in  like  manner  as  if  it  had 
been  originally  payable  to  bearer.  After  a  note  has  been  indorsed 
by  a  payee,  any  person  may  write  his  name  on  the  note  under  that  of 
the  payee,  and  be  held  as  indorser, — because  any  subsequent  holder 
may  write  over  the  name  of  the  first  indorser  a  direction  to  pay  the 
note  to  the  next  signer,  and  this  makes  the  next  signer  an  indorsee, 
and  so  gives  him  a  right  to  indorse ;  and  he  or  any  holder  may 


184  NOTES  OF  HAND,   BILLS  OF  EXCHANGE,   ETC. 

write  over  his  name  an  order  to  pay  the  holder,  or  anybody  else. 
If  the  indorsement  consist  not  only  of  the  name,  but  of  an  order 
above  the  name  to  pay  the  note  to  some  specified  person,  then  it  is 
an  indorsement  in  full,  and  the  note  can  be  paid  to  no  one  else 
unless  that  person  indorses  it ;  nor  can  the  property  in  it  be  fully 
transferred,  except  by  his  indorsement ;  and  his  indorsee  may  again 
indorse  it  in  blank  or  in  full.  If  the  indorsement  is,  Pay  to  A  B 
only,  or  in  equivalent  words,  A  B  is  indorsee,  but  cannot  indorse  it 
over. 

Any  holder  for  value  of  a  bill  or  note  indorsed  in  blank,  whether 
he  be  the  first  indorsee  or  one  to  whom  it  has  come  through  many 
hands,  may  write  over  any  name  indorsed  an  or-der  to  pay  the  con- 
tents to  himself;  and  this  makes  it  a  special  indorsement,  or  an  in- 
dorsement in  full.  This  is  often  done  for  security ;  that  is,  to  guard 
against  the  loss  of  the  note  by  accident  or  theft.  For  the  rule  of 
law  is,  that  negotiable  paper  transferable  by  delivery  (whether  pay- 
able to  bearer  or  indorsed  in  blank)  is,  like  money,  the  property  of 
whoever  receives  it  in  good  faith.  The  same  rule  has  been  extended 
in  England  to  exchequer  bills ;  to  public  bonds  payable  to  bearer ; 
and  to  East  India  bonds ;  and  we  think  it  would  extend  here  to  our 
railroad  and  other  corporation  bonds,  and,  perhaps,  to  all  such  in- 
struments as  are  payable  to  bearer,  whether  sealed  or  not,  and  what- 
ever they  may  be  called.  If  one  has  such  an  instrument,  and  it  is 
stolen,  and  the  thief  passes  it  for  consideration  to  a  bond  fide  holder, 
this  holder  acquires  a  legal  right  to  it,  because  the  property  and 
possession  go  together.  But  if  the  bill  or  note  be  specially  indorsed, 
no  person  can  acquire  any  property  in  it,  except  by  the  indorsement 
of  the  special  indorsee. 

It  may  be  well  to  remark  here,  that  the  finder  of  negotiable 
paper,  as  of  all  other  property,  ought  to  make  reasonable  endeavors 
to  discover  the  owner,  and  is  entitled  to  use  the  thing  found  as  his 
own  only  when  he  has  made  such  endeavors  unsuccessfully.  If  lie 
conceals  the  fact  of  finding,  and  appropriates  the  thing  to  his  own 
use,  he  is  liable  to  the  charge  of  larceny  or  theft. 

The  written  transfer  of  negotiable  paper  is  called  an  indorsement, 
because  it  is  almost  always  written  on  the  back  of  the  note  ;  but  it 
has  its  full  legal  effect  if  written  on  the  face. 


THE  EIGHTS  AND  DUTIES   OF  THE  INDORSEE.  185 

Joint  payees  of  a  bill  or  note,  who  are  not  partners,  must  all  join 
in  an  indorsement. 

An  indorser  may  always  prevent  his  own  responsibility  by  writing 
"  without  recourse,"  or  other  equivalent  words,  over  his  indorse- 
ment ;  and  any  bargain  between  the  indorser  and  indorsee,  written 
or  oral,  that  the  indorser  shall  not  be  sued,  is  available  by  him 
against  that  indorsee ;  but  he  cannot  make  this  defence  against  sub- 
sequent indorsees  who  had  no  notice  of  the  bargain  before  they  took 
the  note. 

Every  indorsement  and  acceptance  admits  conclusively  the  genu- 
ineness of  the  signature  of  every  party  who  has  put  his  name  upon 
the  bill  previously  in  fact,  and  who  is  also  previous  in  order.  By 
this  is  meant,  that  if  an  indorser — say  a  third  indorser  —  is  sued, 
he  cannot  defend  himself  by  saying  that  the  names  of  the  maker 
and  first  and  second  indorsers,  or  either  of  them,  were  forged,  be- 
causo  by  indorsing  it  himself  he  gives  his  indorsee  a  right  to  believe 
that  the  previous  signatures  were  genuine.  And  an  acceptor  can- 
not say  that  his  drawer's  name  is  forged ;  but  he  may  say  that  an 
indorsement  which  was  on  the  bill  when  he  accepted  it  was  forged, 
because  an  indorsement  of  a  bill  comes  properly  and  in  order  of  law 
after  acceptance. 

If  a  holder  strike  out  an  indorsement  by  mistake,  he  may  restore 
it ;  if  on  purpose,  the  indorser  is  permanently  discharged. 

A  holder  may  bring  his  action  against  any  prior  indorser,  either  by 
making  title  through  all  the  subsequent  indorsements,  or  by  filling 
any  blank  indorsement  specially  to  himself,  and  suing  accordingly  ; 
but  then  he  invalidates  all  the  indorsements  which  are  subsequent 
to  that  which  he  has  made  special  to  himself. 

One  may  make  a  note  or  bill  payable  to  his  own  order,  and  in- 
dorse it  in  blank  ;  and  this  is  now  very  common  in  our  commercial 
cities,  because  the  holder  of  such  a  bill  or  note  can  transfer  it  by 
delivery,  and  it  needs  not  his  indorsement  to  make  it  negotiable 
further.  A  note  to  the  maker's  own  order,  if  not  indorsed  by  him, 
is,  strictly  speaking,  of  no  force  against  him.  But  there  is  some  dis- 
position in  the  courts  to  say  that  a  holder  of  such  note  may  sue  the 
maker  as  if  the  note  were  to  bearer. 

A  transfer  by  delivery,  without  indorsement,  of  a  bill  or  note  pay- 


186  NOTES  OP  HAND,  BILLS  OF  EXCHANGE,  ETC. 

able  to  bearer,  or  indorsed  in  blank,  does  not  generally  make  the 
transferrer  responsible  to  the  transferree  for  the  payment  of  the  in- 
strument. Nor  has  the  transferree  a  right  to  fall  back,  in  case  of 
non-payment,  upon  the  transferrer  for  the  original  consideration  of 
the  transfer,  if  the  bill  were  transferred  in  good  faith,  in  exchange 
for  money  or  goods ;  for  such  transfer  would  be  held  to  be  a  sale  of 
the  bill  or  note,  and  the  purchaser  takes  it  with  all  risk. 

An  indorsement  may  be  made  on  the  paper  before  the  bill  or  note 
is  drawn;  and  such  indorsement,  says  Lord  Mansfield,  "is  a  letter 
of  credit  for  an  indefinite  sum,  and  it  will  not  lie  in  the  indorser's 
mouth  to  say  that  the  indorsements  were  not  regular."  The  same 
rule  applies  to  an  acceptance  on  blank  paper.  So  an  indorsement 
may  be  made  after  or  before  acceptance,  though  strictly  proper  only 
after. 

A  bill  or  note  once  paid  at  or  after  maturity,  ceases  to  be  negotia- 
ble, in  reference  to  all  who  had  been  discharged  by  the  payment. 
If  issued  again,  it  is  like  a  new  note  without  their  names.  If  a  bill 
or  note  is  paid  before  it  is  due,  it  is  valid  in  the  hands  of  a  subse- 
quent bond  fide  indorsee,  and  must  be  paid  to  him. 

A  portion  of  a  negotiable  bill  or  note  cannot  be  transferred,  so  as 
to  give  the  transferree  a  right  of  action  for  that  portion  in  his  own 
name.  But  if  the  bill  or  note  be  partly  paid,  it  may  be  indorsed 
over  for  the  balance. 

After  the  death  of  a  holder  of  a  bill  or  note,  his  executor  or  ad- 
ministrator may  transfer  it  by  his  indorsement.  The  husband  who 
acquires  a  right  to  a  bill  or  a  note  which  was  given  to  the  wife  either 
before  or  after  marriage,  may  indorse  it. 

If  the  rule  that  the  same  party  cannot  be  plaintiff  and  defendant, 
prevents  the  action,  as  where  A,  B,  &  Co.  hold  the  note  of  A,  C,  & 
Co.,  so  that  if  a  suit  were  brought  A  would  be  one  of  the  plaintiffs 
and  one  of  the  defendants  also,  which  cannot  be,  A,  B,  &  Co.  may 
indorse  the  note  to  D,  who  may  then  sue  A,  C,  &  Co. 


THE  BIGHTS  AND  DUTIES   OP  THE  ACCEPTOB.  187 

SECTION  VH. 
THE    BIGHTS    AND    DUTIES    OF    THE    ACCEPTOR. 

ACCEPTANCE  applies  to  bills,  and  not  to  notes.  It  is  an  engage- 
ment of  the  person  on  whom  the  bill  is  drawn  to  pay  it  according  to 
its  tenor.  The  usual  way  of  entering  into  this  agreement,  or  of  ac- 
cepting, is  by  the  drawee's  writing  his  name  across  tho  face  of  the 
bill,  and  writing  over  it  the  word  "  accepted."  But  any  other  word 
of  equivalent  meaning  may  be  used,  and  it  may  be  written  elsewhere, 
and  it  need  not  be  signed,  or  the  drawee's  name  alone  on  the  bill 
may  be  enough.  A  written  promise  to  accept  a  future  bill,  if  it 
distinctly  define  and  describe  that  very  bill,  has  been  held  in  this 
country  as  the  equivalent  of  an  acceptance,  if  the  bill  was  taken  on 
the  credit  of  such  promise. 

A  banker  is  liable  to  his  depositor  without  acceptance  of  his 
checks,  if  he  refuses  to  pay  checks  drawn  against  funds  in  his  hands. 

If  a  bill  is  accepted  by  a  part  only  of  those  jointly  responsible,  or 
joint  drawees,  it  may  be  treated  by  the  holder  as  dishonored  ;  but 
if  not  so  treated,  the  parties  accepting  will  be  bound. 

An  acceptance  may  be  made  after  maturity,  and  will  be  treated 
as  an  acceptance  to  pay  on  demand. 

The  acceptance  may  be  cancelled  by  the  holder ;  and  if  this  can- 
celling be  voluntary  and  intended,  it  is  complete  and  effectual;  but 
if  made  by  mistake,  by  him  or  other  parties,  and  this  mistake  can 
be  shown,  the  acceptor  is  not  discharged.  And  if  the  cancelling  be 
by  a  third  party,  it  is  for  the  jury  to  say  whether  the  holder  author- 
ized or  assented  to  it. 

If  a  qualified  acceptance  be  offered,  the  holder  may  receive  or 
refuse  it.  If  he  refuses  it,  he  may  treat  the  bill  as  dishonored  ;  if  he 
receives  it,  he  should  notify  antecedent  parties,  and  obtain  their  con- 
sent ;  without  which  they  are  not  liable.  But  if  he  protests  the  bill 
as  dishonored,  for  this  reason,  he  cannot  hold  the  acceptor  upon  his 
qualified  acceptance. 

A  bill  drawn  on  one  incompetent  to  contract,  as  from  infancy, 
marriage,  or  lunacy,  may  be  treated  by  the  holder  as  dishonored. 

14 


188  NOTES  OF  HAND,  BILLS  OF  EXCHANGE.  ETC. 

A  bill  can  be  accepted  only  by  the  drawee,  —  in  person  or  by  his 
authorized  agent,  —  or  by  some  one  who  accepts  for  honor. 


SECTION  vm. 

ACCEPTANCE  OB  PAYMENT  FOR  HONOR. 

IP  a  bill  be  protested  for  non-acceptance  or  for  non-payment,  any 
person  may  accept  it,  or  pay  it  for  the  honor  either  of  the  drawer 
or  of  any  indorser.  This  he  usually  does  by  going  with  the  bill 
before  the  notary-public  who  protested  the  bill,  and  there  declaring 
that  he  accepts  or  pays  the  bill  for  honor;  and  he  should  designate 
for  whose  honor  he  accepts  or  pays  it,  at  the  time,  before  the  notary- 
public,  and  it  should  be  noted  by  him. 

A  general  acceptance  supra  protest  (which  is  the  phrase  used  both 
by  merchants  and  in  law,  meaning  upon  or  after  protesf)  for  honor, 
is  taken  to  be  for  honor  of  the  drawer.  The  drawee  himself,  refus- 
ing to  accept  it  generally,  may  thus  accept  for  the  honor  of  the 
drawer  or  an  indorser.  And  after  a  bill  is  accepted  for  honor  of 
one  party,  it  may  be  accepted  by  another  person  for  honor  of  another 
party.  And  an  acceptance  for  honor  may  be  made  at  the  interven- 
tion and  request  of  the  drawee. 

No  holder  is  obliged  to  receive  an  acceptance  for  honor :  he  may 
refuse  it  wholly.  If  he  receive  it,  he  should,  at  the  maturity  of  the 
bill,  present  it  for  payment  to  the  drawee,  who  may  have  been  sup- 
plied with  funds  in  the  mean  time.  If  not  paid,  the  bill  should  be 
protested  for  non-payment,  and  then  presented  for  payment  to  the 
acceptor  for  honor. 

The  undertaking  of  the  acceptor  for  honor  is  collateral  only ; 
being  an  engagement  to  pay  if  the  drawee  does  not.  It  can  only  be 
made  for  some  party  who  will  certainly  be  liable  if  the  bill  be  not 
paid  ;  because,  by  an  acceptance  or  by  a  payment,  properly  made, 
for  honor,  supra  protest,  such  acceptor  or  payer  acquires  an  absolute 
claim  against  the  party  for  whom  he  accepts,  or  pays,  and  against 
all  parties  to  the  bill  antecedent  to  him,  for  all  his  lawful  costs,  pay- 
ments, and  damages,  by  reason  of  such  acceptance  or  payment. 


FORMS  OF  JUDGMENT  NOTES.  189 

This  is  an  entire  exception  to  the  rule  that  no  person  can  make  him- 
self the  creditor  of  another  without  the  request  or  consent  of  that 
other ;  but  it  is  an  exception  established  by  the  law-merchant. 

The  reason  why  bills  of  exchange  are  sometimes  accepted  or  paid 
fer  honor  is  to  save  the  party  for  whose  honor  this  is  done,  from  the 
very  heavy  damages  of  a  protested  bill. 

In  many  of  our  States  it  is  a  common  practice  to  give  a  promis- 
sory note,  and  include  in  it  a  confession  of  judgment,  for  the  amount. 
A  suit  may  then  be  brought  on  the  note  as  soon  as  it  is  due  and 
unpaid,  and  a  judgment  taken  out  at  once  without  the  delay  of  a 
trial ;  and  execution  may  issue  on  the  judgment.  Sometimes  by 
the  same  note  the  promisor  waives  or  renounces  the  benefit  or  pro- 
tection of  all  exemption  laws;  and  then  the  execution  may  be 
satisfied  from  any  of  his  property  that  the  sheriff  can  find. 


(68.) 

Form  of  a  Judgment  Note  with  Waiver. 
$  18 

(Time.")  after  date,  for  value  received,  promise  to  pay 

or  bearer,  dollars,  with  interest,  and  without 

defalcation  or  stay  of  execution.     And  do  hereby  confess  judgment  for 

the  above  sum,  with  interest  and  costs  of  suit,  a  release  of  all  errors,  and  waiver 
of  all  rights  to  inquisition  and  appeal,  and  to  the  benefit  of  ah1  laws  exempting  real 
or  personal  property  from  levy  and  sale. 

(Sign  \lure.) 

Sometimes,  in  addition  to  the  above,  the  same  note  has  below  it 
a  power  of  attorney,  authorizing  the  attorney  whose  name  is  put 
into  the  blank  left  for  that  purpose  to  appear  in  court  for  the 
promisor,  and  confess  judgment.  Sometimes  the  power  is  given  to 
an  attorney  whom  the  parties  agree  upon,  and  then  no  other  attor- 
ney can  confess  the  judgment.  It  is,  however,  far  more  usual,  and 
better,  to  insert  the  name  of  an  attorney,  and  add,  as  in  the  follow- 
ing form,  "  or  any  attorney  of  any  court  of  record." 


190  NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

•       (69.) 

Judgment  Note  with  Waiver,  and  Power  of  Attorney. 
$  186 

after  date  the  subscriber    ,  of 

County  of  State  of  promise  to  pay  to  the 

National  Bank  of  or  order  dollars,  at  their 

office,  value  received,  with  interest,  at  per  cent  per  annum  after  due. 

Due 

Know  all  Men  by  these  Presents,  That  the 

subscriber  justly  indebted  to  the  National  Bank  of 

upon  a  certain  promissory  note,  bearing  even  date  herewith, 
for  the  sum  of  dollars,  with  interest,  at  the  rate  of  per 

cent  per  annum,  after  due,  and  due  day    after  date. 

Now,  Therefore,  In  consideration  of  the  premises  do  hereby 

make,  constitute,  and  appoint  or  any  attorney  of  any  court  of 

record,  to  be  true  and  lawful  attorney,  irrevocably  for  and  in 

name  ,  place,  and  stead,  to  appear  in  any  court  of  record,  in  term  time 
or  in  vacation,  in  any  of  the  States  or  Territories  of  the  United  States,  at  any 
time  after  the  said  note  becomes  due,  to  waive  the  service  of  process,  and  confess  a 
judgment  in  favor  of  the  said  National  Bank  of 

or  their  assigns  or  assignees,  upon  the  said  note  for  the  above  sum  and  interest 
thereon,  to  the  day  of  the  entry  of  the  said  judgment,  together  with  costs,  and 
twenty  dollars,  attorney's  fees,  and  also  to  file  a  cognovit  for  the  amount  thereof, 
with  an  agreement  therein,  that  no  writ  of  error  or  appeal  shall  be  prosecuted  upon 
the  judgment  entered  by  virtue  hereof,  nor  any  bill  in  equity  filed  to  interfere  in 
any  manner  with  the  operation  of  said  judgment,  and  to  release  all  errors  that  may 
intervene  in  the  entering-up  of  said  judgment,  or  issuing  the  execution  thereon ; 
and  also  to  waive  all  benefit  of  advantage  to  which  may  be  entitled  by 

virtue  of  any  homestead  or  other  exemption  law,  now,  or  hereafter  in  force,  in  this 
or  any  other  State  or  Territory  where  judgment  may  be  entered  by  virtue  hereof. 
Hereby  ratifying  and  confirming  all  that  said  attorney  may  do  by  virtue 

hereof. 

Witness  hand  and  seal  this  day  of 

A.  D.  186 

(Signature.')     (Seal.) 
In  Presence  of  » 

Sometimes  the  note  is  followed  on  the  same  paper  by  a  power  to 
confess  judgment,  and  a  waiver  of  all  right  of  exemption ;  both  the 
power  and  the  waiver  extending  beyond  the  above-written  note,  and 
covering  other  notes  and  bonds  and  other  evidence  of  debt. 


FORMS  OF  JUDGMENT  NOTES.  191 


(70.) 
Judgment  Note  with  fuller  Waiver,  and  Power  of  Attorney. 

$  18 

for  value  received,  premise 

to  pay  to  the  order  of  the  sum  of  dollars,  with 

interest,  in  (time) 

(Signature.) 

Know  all  Men  by  these  Presents,  That  whereas, 

the  subscriber  now  justly  indebted  to 

upon  a  certain  promissory  note,  bearing  even  date  herewith,  for  the  sum  of 

dollars,  and  cents,  made  payable  to  the  order  of  the 

said  and  due  ,  and  may  from  tune  to  time 

hereafter  become  further  or  otherwise  justly  indebted  to  the  said 
upon  bonds,  promissory  notes,  due  bills,  and  other  written  evidences  of  debt,  made, 
or  to  be  made,  indorsed  or  accepted  by  and  held  or  owned  by 

the  said  assignee  or  assignees  hereof. 

Now,  Therefore,  in  consideration  of  the  premises,  and  of  the  sum  of  one 
dollar  to  paid  by  the  said  the  receipt  whereof  is 

hereby  acknowledged  do  hereby  make,  constitute,  and  appoint 

or  any  attorney  of  any  court  of  record,  to  be  true  and  lawfiij 

attorney,  irrevocable,  for  and  in  %  name     ,  place     ,  and  stead, 

to  appear  in  and  before  any  court  of  record,  either  in  term  time  or  in  vacation,  hi 
any  of  the  States  or  Territories  of  the  United  States,  at  any  time  after  the 

of  said  note,  or  of  any  such  bond,  promissory  note,  due  bill,  or 
other  written  evidence  of  debt,  so  already  made  or  to  be  made,  indorsed  or  accept- 
ed by  as  aforesaid,  respectively,  to  waive  service  of  process, 
and  confess  a  judgment  in  favor  of  the  said  executors, 
administrators,  assignee,  or  assignees,  or  the  legal  holder  or  holders  of  said  note  or 
of  any  one  or  more  of  such  bonds,  promissory  notes,  due  bills,  or  other  written 
evidences  of  debt,  as  aforesaid,  for  so  much  money  as  shall  by  the  same  appear  to 
be  due  or  owing  thereon,  with  interest  thereon  according  to  the  tenor  and  effect 
thereof  respectively,  together  with  costs ;  also,  for  dollars  attorney's 
fees,  to  be  added  to  the  amount  due  or  owing  on  entering  up  judgment ;  also,  to 
file  a  cognovit  for  the  amount  that  may  be  so  due  or  owing,  including  attorney's 
fees  as  aforesaid,  with  an  agreement  therein  that  no  writ  of  error  or  appeal  shall 
be  prosecuted  upon  the  judgment  entered  up  by  virtue  hereof,  nor  any  bill  in 
equity  filed  to  restrain  or  in  any  manner  interfere  with  the  operation  cf  said  judg- 
ment, or  any  execution  issued  or  to  be  issued  thereon,  and  to  release  all  errors  that 
may  intervene  in  the  entering-up  of  any  such  judgment  or  issuing  any  execution 
thereon,  and  to  consent,  stipulate,  and  agree,  that  any  execution  issued  or  to  be 
issued  upon  such  judgment,  may  be  immediately  levied  upon,  and  satisfied  out  of 


192  AGENCY. 

any  personal  property  -which  may  have  or  own,  and  to  waive  and  relin- 

quish all  right  to  have  personal  property  last  taken  and 

levied  upon  to  satisfy  such  execution,  and  also  to  consent  that  execution  may  issue 
upon  any  such  judgment  immediately.     Hereby  ratifying  and  confirming  all  that 
said  attorney  may  do  by  virtue  hereof. 

And,  in  consideration  of  the  premises,  do  hereby  stipulate,  covenant,  and 

agree  with  the  said  executors,  administrators,  and  with  the 

assignee,  assignees,  or  the  legal  holder  or  holders  of  said  note,  or  of  any  one  or 
more  of  such  bonds,  promissory  notes,  due  bills,  or  other  written  evidences  of  debt 
as  aforesaid,  that  any  execution  so  issued  or  to  be  issued  as  aforesaid,  may  first  be 
levied  upon  and  satisfied  out  of  any  personal  property  which  may  have 

or  own,  hereby  expressly  waiving  all  right  to  have  personal  property 

last  taken  and  levied  upon  to  satisfy  such  execution. 

Witness  hand    and  seal    this  day  of 

A.  D.  18 

(Signature.)     (Seal.) 

In  Presence  of 


CHAPTER  XVII. 

AGENCY. 


SECTION    I. 
AGENCY  IN  GENERAL. 

THE  relation  of  principal  and  agent  implies  that  the  principal  acts 
by  and  through  the  agent,  so  that  the  acts  in  fact  of  the  agent  are 
the  acts  in  law  of  the  principal ;  and  only  when  one  is  authorized 
by  another  to  act  for  him  in  this  way,  and  to  this  extent,  is  he  an 
agent.  One  who  is  disqualified  from  contracting  on  his  own  account 
may  act  as  the  agent  of  another ;  thus  infants,  married  women, 
and  aliens  may  act  as  agents  for  others. 

A  principal  is  responsible  for  the  acts  of  his  agent,  not  only  when 
he  has  actually  given  full  authority  to  the  agent  thus  to  represent 
and  act  for  him,  but  when  he  has,  by  his  words,  or  his  acts,  or  both, 
caused  or  permitted  the  person  with  whom  the  agent  deals  to  believe 
him  to  be  clothed  with  this  authority.  And  a  man  may  be  thus  held 


AGENCY  IN  GENEKAL.  193 

as  a  principal,  either  because  he  has  in  some  way  authorized  alt  per- 
sons to  believe  that  he  has  constituted  some  other  man  his.  agent,  or 
because  he  has  authorized  only  the  party  dealing  with  the  supposed 
agent  to  so  believe.  For  all  responsibility  rests  upon  two  grounds, 
which  are  commonly  united,  but  either  of  which  alone  is  sufficient  : 
one,  the  giving  of  actual  authority ;  the  other,  such  appearing  to 
give  authority  as  justifies  those  who  deal  with  the  supposed  agent 
in  believing  that  this  authority  was  given  him. 

A  general  agent  is  one  authorized  to  represent  his  principal  in  all 
his  business,  or  in  all  his  business  of  a  particular  kind.  A  particular 
agent  is  one  authorized  to  do  only  a  specific  thing  or  a  few  specified 
things.  It  is  not  always  easy  to  discriminate  between  these  ;  but  it 
is  often  important,  by  reason  of  the  rule  that  the  authority  of  a  general 
agent  is  measured  by  the  usual  scope  and  character  of  the  business 
he  is  empowered  to  transact.  By  appointing  him  to  do  that  business, 
the  principal  is  considered  as  saying  to  the  world  that  his  agent  has 
all  the  authority  necessary  to  the  doing  of  it  in  the  usual  way.  And 
if  the  agent  transcends  his  actual  authority,  but  does  not  go  beyond 
the  natural  and  usual  scope  of  the  business,  the  principal  is  bound, 
unless  the  party  with  whom  the  general  agent  dealt  knew  that  the 
agent  exceeded  his  authority.  For  if  an  agent  does  only  what  is 
natural  and  usual  in  transacting  business  for  his  principal,  and  yet 
goes  beyond  the  limits  prescribed  by  him,  it  is  obvious  that  the  prin- 
cipal must  have  put  particular  and  unusual  limitations  to  his  author- 
ity ;  and  these  cannot  affect  the  rights  of  a  third  party  who  deals 
with  the  agent  in  ignorance  of  these  limitations.  But,  on  the  other 
hand,  the  rule  is,  that,  if  an  agent  who  is  specially  authorized  to  do 
a  specific  thing  exceeds  his  authority,  the  principal  is  not  bound, 
because  the  party  dealing  with  such  agent  must  inquire  for  himself, 
and  at  his  own  peril,  into  the  extent  and  limits  of  the  authority 
given  to  the  agent.  Here,  however,  as  before,  if  the  party  dealing 
with  the  agent,  and  inquiring,  as  he  should,  into  his  authority,  has 
sufficient  evidence  of  this  authority  furnished  to  him  by  the  princi- 
pal, and,  in  his  dealings  with  the  agent,  acts  within  the  limits  of  the 
^authority  thus  proved,  he  cannot  be  affected  by  any  reservations  and 
limitations  made  secretly  by  the  principal,  and  wholly  unknown  to 
the  person  dealing  wif h  the  agent. 


194  AGENCY. 

SECTION  H. 
HOW    AUTHORITY    MAT    BE    GIVEN    TO    AN    AGENT. 

IT  may  be  given  under  seal,  or  in  writing  without  seal,  or  o:ally. 
if  given  by  a  written  instrument,  this  instrument  is  called  a  Power 
of  Attorney,  of  which  we  shall  give  various  forms  at  the  close  of  this 
chapter.  An  oral  appointment  authorizes  the  agent  to  make  a  writ- 
ten contract,  but  not  to  execute  instruments  under  seal.  But  ai? 
instrument  under  seal,  signed  and  sealed  in  the  principal's  presence, 
and  by  his  request  and  authority,  will  be  regarded  as  the  princi- 
pal's deed,  made  by  himself.  One  employed  by  another  to  act  for 
him  iii  the  usual  trade  or  business  of  the  agent,  as  auctioneer, 
broker,  or  the  like,  acquires  thereby  authority  to  do  all  that  in 
necessary  or  usual  in  that  business.  And  if  a  person  puts  his  goods 
into  the  custody  of  another  whose  ordinary  and  usual  business  it  is  to 
sell  siich  goods,  he  authorizes  the  whole  world  to  believe  that  this 
person  has  them  for  sale  ;  and  any  person  buying  them  honestly,  in 
this  belief,  would  hold  them. 

Therefore,  if  fraudulent  by-bidding  be  procured  or  permitted  by 
the  auctioneer,  even  without  the  knowledge  of  the  owner  of  tho 
goods,  the  owner  is  answerable  for  this  fraud  of  his  agent,  and  the 
buyer  has  a  right  to  refuse  to  take  the  goods.  So  neither  party  is 
bound  until  the  agreement  of  sale  is  completed.  Therefore  the 
actioneer  may  withdraw  any  article,  and  a  bidder  may  withdraw 
any  bid,  until  the  article  is  "  knocked  down,"  but  not  afterwards ; 
for  then  the  sale  is  completed,  and  the  property  in  (or  ownership 
of)  the  article  passes  to  the  buyer. 

If  one  is  repeatedly  employed  to  do  certain  things, —  as  a  wife  or 
a  son  to  sign  bills  or  receipts ;  or  a  domestic  servant  to  make  pur- 
chases ;  or  a  merchant  or  broker  to  sign  policies,  and  the  like,  — 
in  all  these  cases,  one  dealing  with  the  person  thus  usually  employed 
is  justified  in  believing  him  authorized  to  do  those  things  with  the 
assent  and  approbation  of  his  employer,  and  in  the  same  way  in 
which  he  has  done  them,  but  not  in  any  other  way.  Thus,  if  a  ser^ 
vant  is  usually  employed  to  buy,  but  always  for  cash,  this  implies  no 
authority  to  buy  on  Credit. 


HOW  AUTHOKITY  MAY  BE  GIVEN  TO  AN   AGENT.  195 

An  agency  may  be  confirmed  and  established,  and  in  fact  created, 
by  a  subsequent  adoption  and  ratification ;  and  a  ratification  relates 
back  to  the  original  transaction  ;  and  a  corporation  is  bound  by  the 
ratification  of  an  agent's  acts,  in  the  same  manner  as  an  individual 
would  be.  But  no  ratification  is  effectual  to  bind  the  principal, 
unless  made  by  the  principal  with  a  knowledge  of  all  the  material 
facts.  And  there  can  be  ratification  only  where  the  act  is  done  by 
one  purporting  to  be  an  agent,  or  by  an  assumed  authority.  Gen- 
erally, one  who  receives  and  holds  a  beneficial  result  of  the  act  of 
another  as  his  agent,  is  not  permitted  to  deny  such  agency ;  and  iu 
some  cases  this  is  extended  even  to  acts  of  such  agent  under  seal. 

Thus,  if  an  agent  sell  under  seal  property  of  a  supposed  principal, 
an  individual  or  a  corporation,  and  receive  payment,  and  hand  this 
over  to  the  principal,  if  the  principal  could  show  that  the  agent  had 
no  authority,  he  might  avoid  the  sale,  and  recover  the  property  ;  but 
he  could  not  do  this  and  also  hold  the  money  paid  for  it.  And  if 
one,  knowing  that  another  has  acted  as  his  agent,  does  not  disavow 
the  authority  as  soon  as  he  conveniently  can,  but  lies  by  and  permits 
a  person  to  go  on  and  deal  with  the  supposed  agent,  or  to  lose  an 
opportunity  of  indemnifying  himself,  this  is  an  adoption  and  confir- 
mation of  the  acts  of  the  agent.  Nor  can  a  supposed  principal 
adopt  a  part  for  his  own  benefit,  and  repudiate  the  rest  of  the  sup- 
posed agency  ;  he  must  adopt  the  whole  or  none. 

If  an  agent  makes  a  sale,  and  his  principal  ratifies  the  sale,  he 
thereby  ratifies  the  agent's  representations  made  at  the  time  of  the 
sale  and  in  relation  to  it,  and  is  bound  by  them. 

The  whole  subject  of  mercantile  agency  is  influenced  and  governed 
by  mercantile  usage.  .Thus,  as  to  the  difference  between  factors 
and  brokers,  the  law  adopts  a  distinction  usual  among  merchants, 
although  it  may  not  always  be  regarded  by  them.  A  factor  is  a 
mercantile  agent  for  sales  and  purchases,  who  has  possession  of  the 
goods;  a  broker  is  such  agent,  but  without  possession  of  the  goods. 
Hence,  a  factor  may  act  for  his  principal,  and  yet  in  his  own  name, 
because  the  actual  owner,  by  delivering  to  him  the  goods,  gives  to 
him  the  appearance  of  an  owner ;  but  a  broker  must  act  only  in  the 
name  of  his  principal. 

A  purchaser  of  goods  from  a  factor  may  set  off  against  the  price  a 


196  AGENCY. 

debt  due  from  the  factor,  unless  he  buys  the  goods  knowing  that 
they  are  another's ;  not  so,  if  the  purchaser  buy  from  a  broker. 
Again,  a  factor  has  a  lien  on  the  goods  for  his  claims  against  his 
principal ;  but  a  broker  generally  has  not. 

One  may  be  a  factor  as  to  all  rights  and  duties,  who  is  called  a 
broker;  as  an  exchange-broker,  who  has  notes  for  sale  on  discount, 
certificates  of  stock,  &c.,  delivered  into  his  possession  ;  and  such 
broker,  being  actually  a  factor,  would  have  a  lien  on  the  policies  of 
insurance  or  other  documents  held  by  him,  for  his  commissions  and 
charges  about  those  documents. 

A  cashier  of  a  bank,  or  other  official  person,  may  be  an  agent  for 
those  whose  officer  he  is,  or  for  others  who  employ  him.  He  has, 
without  special  gift,  all  the  authority  necessary  or  usual  to  the 
transaction  of  his  business.  But  he  cannot  bind  his  employers  by 
any  unusual  or  illegal  contract  made  with  their  customers.  The 
same  law,  and  the  same  qualifications,  apply  to  the  case  of  officers 
of  railroad  companies,  or  other  corporations.  Their  acts  bind  their 
employers  or  companies,  so  far  as  they  have  authorized  those  acts, 
or  have  justified  those  who  dealt  with  the  officers  in  believing  that 
the  officers  possessed  such  authority  ;  but  no  further. 

Nor  would  the  acts  or  permissions  of  such  officer  have  any 
validity  if  they  violate  his  official  duties,  and  are  certainly  and 
obviously  beyond  his  power,  even  if  sanctioned  by  his  directors ;  as 
if  the  cashier  of  a  bank  permitted  overdrawing,  or  the  like.  And 
all  parties  who  deal  with  such  agent  in  such  a  transaction  would  be 
unable  to  hold  the  principal ;  for  the  law  would  consider  them  as 
knowing  that  the  officer  could  have  no  right  to  do  such  things. 

Therefore,  the  general  agent  of  a  corporation,  clothed  with  a 
certain  power  by  the  charter  or  the  lawful  acts  of  the  corporation, 
may  use  that  power  for  an  authorized,  or  even  a  prohibited  purpose, 
in  his  dealings  with  an  innocent  third  party,  and  render  the  corpo- 
ration liable  for  his  acts,  if  they  be  really  within  the  power  given 
him,  or  seem  to  be  within  it  by  the  fault  or  act  of  the  corporation ; 
but  not  otherwise.  Thus,  a  treasurer  of  a  corporation  has  no  power 
to  release  a  claim  which  belongs  to  the  corporation. 


EXTENT  AND  DURATION  OF  AUTHORITY.  197 

SECTION   m. 
EXTENT  AND  DURATION  OF  AUTHORITY. 

A  GENERAL  authority  may  continue  to  bind  a  principal  after  its 
actual  revocation,  if  the  agency  were  known,  and  the  revocation  be 
wholly  unknown  to  the  party  dealing  with  the  agent,  without  that 
party's  fault. 

An  authority  to  sell  implies  an  authority  to  sell  on  credit,  if  that 
be  usual ;  otherwise  not ;  and  if  an  agent  sells  on  credit  without  any 
authority,  or  by  exceeding  his  authority,  the  principal  may  claim 
his  goods  from  the  purchaser,  or  hold  the  agent  responsible  for  their 
price.  Neither  an  auctioneer,  nor  a  broker  employed  to  sell,  has 
any  right  to  sell  on  credit,  unless  this  authority  is  given  him  ex- 
pressly, or  by  some  known  and  established  usage.  And  the  agent  is 
generally  responsible  if  he  mixes  the  goods  of  his  principal  with  his 
own,  in  such  a  manner  as  to  confuse  them  together,  or  takes  a  note 
payable  to  himself,  unless  this  be  authorized  by  the  usage  of  the 
trade. 

If  the  agent  (or  factor)  takes  a  note  payable  to  himself,  and  be 
comes  bankrupt,  such  note  belongs  to  his  principal,  and  not  to  the 
agent's  assignees. 

A  power  to  sell  gives  a  power  to  warrant,  where  there  is  a  distinct 
usage  of  making  such  sales  with  warranty,  and  the  want  of  authority 
to  warrant  is  unknown  to  the  purchaser,  without  his  fault ;  and  not 
otherwise.  Thus,  it  has  been  held  that  an  authority  to  sell  a  horse 
implies  an  authority  to  sell  with  warranty,  because  horses  are 
usually  sold  with  warranty.  A  general  authority  to  sell  goods 
carries  with  it  an  authority  to  sell  by  sample.  General  authority  to 
transact  business,  or  even  to  receive  and  discharge  debts,  does  not 
enable  an  agent  to  accept  or  indorse  bills  or  notes,  so  as  to  charge 
his  principal.  Indeed,  special  authorities  to  indorse  are  construed 
strictly.  But  this  authority  may  be  implied  from  the  previous  usage 
of  the  agent,  recognized  and  sanctioned  by  the  principal.  Where  a 
confidential  clerk  was  accustomed  to  draw  bills  for  his  employer, 
and  this  employer  had  authorized  him  in  one  instance  to  indorse, 
and  on  two  other  occasions  had  received  money  obtained  by  his 


198  AGENCY. 

indorsement  of  his  employer's  name,  the  court  held  that  a  jury 
might  consider  the  clerk  authorized  generally  to  indorse  for  his 
employer.  An  agent  to  receive  cash  has  no  authority  to  take  bills 
or  notes,  except  hank-notes. 

If  an  agent  sells,  and  makes  a  material  representation  which  he 
believes  to  be  true,  and  the  principal  knows  it  to  be  false,  and  does 
not  correct  it,  this  is  the  fraud  of  the  principal,  and  avoids  the  sale. 

If  an  agency  be  justly  implied  from  general  employment,  it  may 
continue  so  far  as  to  bind  the  principal  after  his  withdrawal  of  the 
authority,  if  that  withdrawal  be  not  made  known,  in  such  way  as  is 
usual  or  proper,  to  all  who  deal  with  the  agent  as  such. 

Revocation,  generally,  is  always  in  the  power  and  at  the  will  of 
the  principal.  His  death  operates  of  itself  a  revocation.  But  the 
death  of  an  agent  does  not  revoke  the  authority  of  a  sub-agent  ap- 
pointed by  tbe  agent  under  an  authority  given  him  by  the  principal. 
If  the  power  be  coupled  with  an  interest,  —  as  where  one  gives  a 
person  power  to  sell  goods  and  apply  the  money  for  his  own  benefit, 
or  the  like,  —  or  if  it  is  given  for  a  valuable  consideration,  and  the 
continuance  of  the  power  is  requisite  to  make  the  interest  available, 
then  it  cannot  be  revoked  at  the  pleasure  of  the  principal.  Marriage 
of  a  woman  revokes  a  revocable  authority  given  by  her  while  single. 

If  an  agent  to  whom  commercial  paper  is  given  for  collection  be 
negligent  or  mistaken  about  it,  and  so  in  fault  towards  his  principal, 
the  measure  of  his  responsibility  is  the  damage  actually  sustained 
by  his  principal. 

If  a  bank  receive  notes  or  bills  for  collection,  althou^a  charging 
no  commission,  the  possible  use  of  the  money  is  consideration  enough 
to  make  them  liable  as  agents  having  compensation  ;  thot  is,  liable 
for  any  want  of  due  and  legal  diligence  and  care.  But  if  the  bank 
exercise  proper  skill  and  care  in  the  choice  of  a  collectiag  agent,  or 
of  a  notary,  or  other  person  or  officer,  to  do  what  may  be  necessary 
in  relation  to  the  paper  committed  to  them,  the  bank  is  not  liable 
for  his  want  of  care  or  skill. 

In  general,  an  exigency,  or  even  necessity,  which  would  make  an 
extension  of  the  power  of  an  agent  very  useful  to  his  employer,  wil^ 
not  give  that  extension.  A  master  of  a  ship,  however,  may  sell  it, 
in  case  of  necessity,  or  pledge  it  by  bottomry,  to  raise  money.  But 


THE  EXECUTION  OF  AUTHORITY.  199 

this  is  a  peculiar  effect  of  the  law-merchant,  to  be  considered  more 
fully  in  the  chapter  on  the  Law  of  Shipping ;  and  no  such  general 
rule  applies  to  ordinary  agencies. 


SECTION  IV. 

THE   EXECUTION   OF   AUTHORITY. 

GENERALLY,  an  authority  must  be  conformed  to  with  great  strict- 
ness and  accuracy ;  otherwise,  the  principal  will  not  be  bound, 
although  the  agent  may  be  bound  personally.  But  the  old  strictness 
is  now  abated  considerably ;  and,  whatever  be  the  form  or  manner 
of  the  signature  of  a  simple  contract,  it  will  be  held  to  bind  the 
principal,  if  that  were  the  certain  and  obvious  intent.  In  the  case 
of  seale<^  instruments,  the  ancient  severity  is  more  strictly  main- 
tained. 

That  the  authority  must  be  conformed  to  with  strict  accuracy,  in 
ill  matters  of  substance,  is  quite  certain  ;  but  the  whole  instrument 
will  be  considered,  in  order  to  ascertain  the  intention  of  the  parties 
and  the  extent  of  authority.  A  power  given  to  two  cannot  be  exe- 
cuted by  one ;  but  some  exception  to  the  rule  as  to  joint  power 
exists  in  the  case  of  public  agencies,  and  also  in  many  commercial 
transactions.  Thus,  either  of  two  factors  —  whether  partners  or 
not —  may  sell  goods  consigned  to  both.  And  where  there  are  joint 
agents,  whether  partners  or  not,  notice  to  one  is  notice  to  both. 

In  commercial  matters,  usage,  or  the  reason  of  the  thing,  may 
sometimes  seem  to  add  to  an  authority;  so  far,  at  least,  as  is 
requisite  for  the  full  discharge  of  the  duty  committed  to  the  agent 
in  the  best  and  most  complete  manner.  Thus,  it  is  held  that  an 
agent  to  get  a  bill  discounted  may  indorse  it  in  the  name  of  his 
principal,  unless  he  is  expressly  forbidden  to  indorse.  So  a  broker, 
employed  to  procure  insurance,  may  adjust  a  loss  under  the  same  ; 
but  he  cannot  give  up  any  advantages,  rights,  or  securities  of  the 
assured,  by  compromise  or  otherwise,  without  special  authority. 


200  AGENCY. 


SECTION  V. 

OF   AN  AGENT. 


GENERALLY,  an  agent  makes  himself  liable  by  his  express  agree- 
ment, or  by  transcending  his  authority,  or  by  a  material  departure 
from  it,  or  by  concealing  his  character  as  agent,  or  by  such  conduct 
as  renders  his  principal  irresponsible,  or  by  his  own  bad  faith.  If 
he  describes  himself  as  agent  for  some  unnamed  principal,  he  is  not 
liable,  unless  he  is  proved  to  be  the  real  principal.  If  an  agent 
execute  an  instrument  the  language  of  which  would  hold  him 
personally,  he  cannot  exonerate  himself  by  showing  that  in  fact  he 
signed  it  as  agent,  and  that  this  was  known  to  the  other  party.  Be- 
cause this  would  be  to  vary  the  terms  of  a  written  contract  by  evi 
dence,  which  is  not  permitted,  as  we  have  before  stated. 

A  party  with  whom  an  agent  deals  as  agent  cannot  hold  him  per- 
sonally, on  the  ground  that  he  transcended  or  departed  irom  his 
authority,  if  that  party  knew  at  the  time  that  the  agent  did  so.  If 
he  exceeds  his  .authority,  he  is  liable  on  the  whole  contract,  although 
a  part  of  it  is  within  his  authority.  One  who,  having  no  authority, 
acts  as  agent,  is  personally  responsible.  But  if  an  agent  transcends 
his  authority  through  an  ignorance  of  its  limits,  which  is  actual  and 
honest,  and  is  not  imputable  to  his  own  neglect  of  the  means  of 
knowledge,  he  would  not  be  held,  unless  an  innocent  party  dealing 
w'th  him  as  agent  would  otherwise  suffer  loss. 


SECTION  VI. 

RIGHTS   OF   ACTION    GROWING   OUT   OF   AGENCY. 

IP  an  agent  intrusted  with  goods  sell  the  same  without  authority, 
the  principal  may  affirm  the  sale,  and  sue  the  buyer  for  the  price,  or 
he  may  disaffirm  the  sale,  and  recover  the  goods  from  the  buyer. 

In  case  of  a  simple  contract,  that  is,  a  contract  not  under  seal,  an 
undisclosed  principal  may  show  that  the  nominal  party  was  actually 
his  agent,  and  thus  make  himself  actually  a  party  to  the  contract, 


HOW  A  PRINCIPAL  IS  AFFECTED   BY   ACTS  OF  AGENT.      201 

and  sue  upon  it ;  but  if  the  other  party  has  previously  in  good  faith 
settled  with  the  supposed  agent,  or  paid  him  any  thing,  in  cash  or 
by  charge,  or  in  account,  this  other  party  must  not  lose  by  the  com- 
ing forward  of  the  principal.  So,  too,  an  undisclosed  principal, 
when  discovered,  may  be  made  liable  on  such  contract ;  but  would 
be  protected,  if  his  accounts  or  relations  with  his  agent  had  been  in 
the  mean  time  changed  in  good  faith,  so  as  to  make  it  detrimental 
to  him  to  be  held  liable.  If  one  sells  to  an  agent,  knowing  him  to 
be  an  agent,  and  knowing  who  is  his  principal,  and  elects  to  charge 
the  goods  to  the  agent  alone,  he  cannot  afterwards  transfer  the 
charge  to  the  principal. 

Notice  to  an  agent,  before  the  transaction  goes  so  far  as  to  render 
the  notice  useless,  is  notice  to  the  principal.  And  knowledge 
obtained  by  an  agent  in  the  course  of  the  transaction  itself  is  the 
same  thing  as  knowledge  of  the  principal.  Notice  to  an  officer  or 
member  of  a  corporation  is  notice  to  that  corporation,  if  the  officer 
or  member,  by  appointment,  or  by  usage,  had  authority  to  receive  it 
for  the  corporation ;  but  notice  to  any  member  is  not  necessarily 
notice  to  a  corporation. 


SECTION  vn. 

HOW   A    PRINCIPAL   IS   AFFECTED    BY    THE    ACTS    OF    HIS    AGENT. 

IF  an  agent  makes  a  fraudulent  representation,  a  principal  would 
be  liable  for  resulting  injury,  although  personally  ignorant  and 
innocent  of  the  wrong  ;  nor  can  he  take  any  benefit  therefrom.  A 
principal  cannot,  of  course,  restrict  his  liability  by  calling  himself  an 
agent,  although  this  is  sometimes  attempted. 

Payment  to  an  agent  of  money  due  to  the  principal  binds  the 
principal  only  when  it  is  made  to  the  agent  in  the  regular  course  of 
business.  Payment  to  a  sub-agent  appointed  by  the  agent,  but 
whose  appointment  is  not  authorized  by  the  principal,  binds  the 
agent,  and  renders  him  liable  to  the  principal  for  any  loss  of  the 
money  in  the  sub-agent's  hands.  Where  a  legacy  was  left  to  a 
tradesman,  and  the  executors  paid  it  to  a  shopman  who  was  in  the 
habit  of  receiving  daily  payments,  this  was  held  not  a  sufficient  pay- 


202  AGENCY. 

ment  to  discharge  the  executors.  And,  generally,  a  shopman 
authorized  to  receive  money  at  the  counter,  or  any  person  author- 
ized to  receive  money  at  any  particular  place  or  in  any  particular 
way,  is  not  thereby  authorized  to  receive  it  in  any  other  place  or  in 
any  other  way.  •  Nor  is  the  principal  bound,  if  the  agent  be  authorized 
to  receive  the  money,  but,  instead  of  actually  receiving  it,  discharge 
a  debt  due  from  him  to  the  payer,  and  then  give  a  receipt  as  for 
money  paid  to  his  principal,  unless  it  can  be  shown  that  he  has 
special  authority  to  receive  payment  in  this  way,  or  that  such  pay- 
ment is  justified  by  known  usage. 

In  general,  although  a  principal  may  be  responsible  for  the  delib- 
erate fraud  of  his  agent  in  the  execution  of  his  employment,  he  is 
not  responsible  for  his  criminal  acts,  unless  he  expressly  commanded 
them.  There  is,  however,  a  class  of  cases  in  which  the  principal 
has  intrusted  property  to  his  agent,  and  the  agent  has  used  it 
illegally  ;  and  this  act  of  the  agent  is  evidence,  which,  if  unexplained 
and  unanswered,  suffices  to  render  the  principal  liable  criminally, 
without  proof  of  his  direct  participation  in  the  act  itself.  The 
smuggling  of  goods,  the  issue  of  libellous  publications,  and  the  sale 
of  intoxicating  liquors,  by  agents,  belong  to  this  class. 


SECTION  Vin. 

MUTUAL    RIGHTS    AND    DUTIES    OF    PRINCIPAL,    AND    AGENT. 

AN  agent  cannot  depart  from  his  instructions  without  making 
himself  liable  to  his  principal  for  the  consequences.  In  determin- 
ing the  purport  or  extent  of  his  instructions,  custom  and  usage  in 
like  cases  will  often  have  great  influence  ;  because,  on  the  one  hand, 
the  agent  is  entitled  to  all  the  advantages  which  a  known  and  estab- 
lished usage  would  give  him  ;  and,  on  the  other,  the  principal  has  a 
right  to  expect  that  his  agent  will  conduct  himself  according  to  such 
usage.  But  usage  is  never  permitted  to  prevail  over  express  in- 
structions. A  principal  who  accepts  the  benefit  of  an  act  done  by 
his  agent  beyond  or  aside  from  his  instructions,  discharges  the 
agent  from  responsibility  therefor.  And  any  unnecessary  delay  in 


PBINCIPAL  AND  AGENT.  203 

renouncing  the  transaction,  or  any  endeavor  to  wait  and  make  a 
profit  out  of  it,  is  an  acceptance  of  the  act.  But  if  the  agent  has 
bought  goods  for  his  principal  without  authority,  the  latter  may 
renounce  the  purchase,  and,  nevertheless,  hold  the  goods  as  security 
for  his  money,  if  that  has  been  advanced  on  them. 

In  general,  every  agent  is  entitled  to  indemnity  from  his  principal, 
when  acting  in  obedience  to  his  lawful  orders,  or  when  he,  in  con- 
formity with  his  instructions,  does  an  act  which  is  not  wrong  in 
itself,  and  which  he  is  induced  by  his  principal  to  suppose  right  at 
that  time. 

An  attorney  or  agent  cannot  appoint  a  sub-attorney  or  agent, 
unless  authorized  to  do  so  expressly,  or  by  a  certain  usage,  or  by 
the  obvious  reason  and  necessity  of  the  case.  Thus,  a  consignee  or 
factor  for  the  sale  of  merchandise  may  employ  a  broker  to  sell,  when 
this  is  the  usual  course  of  business.  A  sub-agent,  appointed  with- 
out such  authority,  is  only  the  agent  of  the  agent,  and  not  the 
agent  of  the  principal ;  unless  his  appointment  is  in  some  way 
authorized  or  confirmed  and  ratified  by  the  principal. 

An  agent  is  bound  to  use,  in  the  affairs  of  his  principal,  all  that 
care  and  skill  which  a  reasonable  man  would  use  in  his  own.  And 
he  is  also  bound  to  the  utmost  good  faith.  Where,  however,  an 
agent  acts  gratuitously,  without  an  agreement  for  compensation,  or 
any  legal  right  to  compensation  growing  out  of  his  services,  he  will 
not  be  held  responsible  for  other  than  gross  negligence.  A  strictly 
gratuitous  agent  will  be  held  responsible  for  property  intrusted  to 
him,  if  it  be  lost  or  injured  by  his  gross  negligence. 

For  any  breach  of  duty,  an  agent  is  responsible  for  the  whole 
injury  thereby  sustained  by  his  principal ;  and,  generally,  a  verdict 
against  the  principal  for  misconduct  of  the  agent  measures  the  claim 
of  the  principal  over  against  the  agent.  The  loss  must  be  capable 
of  being  made  certain  and  definite  ;  and  then  the  agent  is  responsi- 
ble, if  it  could  not  have  happened  but  for  his  misconduct,  although 
not  immediately  caused  by  it.  Thus,  where  an  insurance-broker 
was  directed  to  effect  insurance  on  goods  "  from  Gibraltar  to 
Dublin,"  and  caused  the  policy  to  be  made,  "  beginning  from  the 
lading  of  the  goods  on  board,"  and  they  were  laden  on  board  at 
Malaga,  and  went  thence  to  Gibraltar,  and  sailed  for  Dublin,  and 

15 


204  AGENCY. 

were  lost  on  the  voyage,  so  that  the  policy  did  not  cover  them  be- 
cause they  were  not  laden  at  Gibraltar,  this  was  held  to  be  gross 
negligence  on  his  part,  and  he  was  held  responsible  for  the  value  of 
the  goods. 

If  any  agent  embezzles  his  employer's  property,  it  is  quite  clear 
that  the  employer  may  reclaim  it  whenever  and  wherever  he  can 
distinctly  trace  and  identify  it.  But  if  it  be  blended  indistinguish- 
ably  with  the  agent's  own  goods,  and  the  agent  die  or  become  insol- 
vent, the  principal  can  claim  only  as  a  common  creditor,  as  against 
other  creditors ;  but  as  against  the  factor  or  agent  himself,  the  whole 
belongs  in  law  to  the  principal ;  because  the  factor  or  agent  had  no 
right  thus  to  mix  up  the  property  of  another  with  his  own,  and  if  he 
chooses  to  do  so,  he  must  lose  all  of  his  own  property  that  cannot  be 
separated  from  that  which  is  not  his  own. 

An  agent  employed  to  sell  property  cannot  buy  it  himself ;  nor, 
if  employed  to  buy,  can  he  buy  of  himself;  unless  expressly  author- 
ized to  do  so.  Nor  can  a  trustee  purchase  the  property  he  holds  in 
trust  for  another.  But  the  other  party  may  ratify  and  confirm  such 
sale  or  purchase  by  his  agent ;  and  he  will  do  this  by  accepting  the 
proceeds  and  delaying  any  objection  for  a  long  time  after  the  wrong- 
ful act  is  made  known  to  him.  And  if  a  trustee  or  agent  to  sell 
property  buys  it,  not  in  his  own  name,  but  through  somebody  else, 
the  sale  is  void. 

Among  the  obvious  duties  of  all  agents  is  that  of  keeping  an  exact 
account  of  their  doings,  and  particularly  of  all  pecuniary  transac- 
tions. After  a  reasonable  time  has  elapsed,  the  court  will  presume 
that  such  an  account  was  rendered,  accepted,  and  settled.  Other- 
wise, every  agent  might  always  remain  liable  to  be  called  upon  for 
such  account.  Moreover,  he  is  liable  not  only  for  the  balances  in 
his  hands,  but  for  interest ;  or  even,  where  there  has  been  a  long 
delay  to  his  own  profit,  he  might  be  liable  for  compound  interest,  on 
the  same  ground  on  which  it  has  been  charged  in  similar  cases 
against  executors,  trustees,  and  guardians.  No  interest  whatever 
would  be  charged,  if  such  were  the  intention  of  the  parties,  or  the 
effect  of  the  bargain  between  them  ;  and  this  intention  may  be  in- 
ferred either  from  direct  or  circumstantial  evidence,  —  as  the  nature 
of  the  transaction,  or  the  fact  that  the  principal  knew  that  the 


FACTOES  AND  BECKERS.  205 

money  lay  useless  in  the  agent's  hands,  and  made  no  objection  or 
claim. 

The  general  rule  is,  that  a  principal  may  revoke  his  agency,  and 
an  agent  may  throw  up  the  agency,  at  pleasure.  But  neither  would 
be  permitted  to  exercise  this  power  in  an  unfair  and  injurious  man- 
ner which  circumstances  do  not  require  or  justify,  without  being 
responsible  to  the  other  party  for  any  damages  caused  by  his  wrong- 
ful act. 

Insanity  revokes  authority,  especially  if  legally  ascertained.  But 
if  the  principal,  when  sane,  gave  an  authority  to  his  agent,  and  a 
third  party  acts  with  the  agent  in  the  belief  of  his  authority,  but 
after  the  insanity  of  the  principal  has  revoked  it,  the  insanity  not 
being  known  to  this  third  party,  this  revocation  will  not  be  per- 
mitted to  take  effect  to  the  injury  of  this  third  party. 


SECTION  IX. 
FACTORS    AND    BROKERS. 

ALL  agents  who  sell  goods  for  their  principals,  and  guarantee  the 
price,  are  said  in  Europe  to  act  under  a  del  credere  commission.  In 
this  country,  this  phrase  is  seldom  used,  nor  is  such  guaranty 
usually  given,  except  by  commission-merchants.  And  where  such 
guaranty  is  given,  the  factor  is  so  far  a  surety,  that  his  employers 
must  first  have  recourse  to  the  principal  debtor.  Still  his  promise 
is  not  "  a  promise  to  pay  the  debt  of  another,"  within  the  Statute  of 
Frauds.  Nor  does  he  guarantee  the  safe  arrival  of  the  money  re- 
ceived by  him  in  payment  of  the  goods,  and  transmitted  to  his 
employer,  but  he  must  use  proper  caution  in  sending  it.  And  if  it  is 
agreed  that  he  shall  guarantee  the  remittance,  and  charge  a  commis- 
sion for  so  doing,  he  is  liable,  although  he  does  not  charge  the  com- 
mission. If  he  takes  a  note  from  the  purchaser,  this  note  is  his 
employer's ;  and  if  he  takes  depreciated  or  bad  paper,  he  must  make 
it  good. 

A  broker  or  factor  is  bound  to  the  care  and  skill  properly  belong- 
ing to  the  business  which  he  undertakes,  and  is  responsible  for  the 
want  of  it. 


206  AGENCY. 

A  factor  intrusted  with  goods  may  pledge  them  for  advances  to 
his  principal,  or  for  advances  to  himself  to  the  extent  of  his  lien  for 
charges  and  commissions.  And  his  power  to  pledge  them,  which 
grows  out  of  the  law-merchant,  has  been  much  enlarged  by  statute 
in  many  of  our  States. 

The  mere  wishes  or  intimations  of  his  employer,  if  sufficiently 
distinct,  have  the  force  of  instructions.  Thus,  in  New  York,  a 
principal  wrote  to  his  factor,  stating  that  he  thought  there  was  a 
short  supply  of  the  goods  he  had  consigned,  and  giving  facts  on 
which  his  opinion  was  founded,  and  concluded,  "  I  have  thought  it 
best  for  you  to  take  my  pork  out  of  the  market  for  the  present,  as 
thirty  days  will  make  an  important  change  in  the  value  of  the 
article."  This  was  considered  by  the  court  to  be  a  distinct  instruc- 
tion, binding  upon  the  factor  ;  and  he  was  therefore  held  liable  for 
the  loss  caused  by  selling  the  pork  within  the  thirty  days. 

All  instructions  the  agent  or  factor  must  obey ;  but  may  still,  as 
we  have  already  stated,  depart  from  their  letter,  if  in  good  faith,  and 
for  the  certain  benefit  of  his  employer,  in  an  unforeseen  exigency. 
Having  possession  of  the  goods,  he  may  insure  them ;  but  is  not 
bound  to  do  so,  nor  even  to  advise  insurance,  unless  requested,  or 
unless  a  distinct  usage  makes  this  his  duty.  He  has  much  discretion 
as  to  the  time,  terms,  and  manner  of  a  sale,  but  must  use  this  dis- 
cretion in  good  faith.  For  a  sale  which  is  precipitated  by  him  with- 
out reason  and  injuriously  is  void,  as  unauthorized.  If  he  send 
goods  to  his  principal  without  order,  or  contrary  to  his  duty,  tho 
principal  may  return  them,  or,  acting  in  good  faith  and  for  the 
benefit  of  the  factor,  may  sell  them  as  the  factor's  goods. 

Although  a  factor  charges  no  guaranty  commission,  he  is  liable  to 
his  principal  for  his  own  default ;  so  he  is  if  he  sells  on  credit,  and, 
when  it  expires,  takes  a  note  to  himself :  but  if  he  takes  at  the  time 
of  the  sale  a  negotiable  note  from  a  party  in  fair  credit,  and  the  note 
is  afterward  dishonored,  this  is  the  loss  of  his  employer,  unless  the 
factor  has  guaranteed  it. 

If  he  sells  the  goods  of  many  owners  to  one  purchaser,  taking  a 
note  for  the  whole  to  himself,  and  gets  it  discounted  for  his  own  use 
or  accommodation,  he  is  then  liable  without  any  guaranty  for  the 
payment  of  that  note.  So  he  is  if  he  gets  discounted  for  his  own  use 


FACTOES  AND  BROKERS.  207 

a  note  taken  wholly  for  his  principal's  goods.  But  he  may  discount 
the  note  to  reimburse  himself  for  advances,  without  making  himself 
liable.  If  he  sends  his  own  note  for  the  price  to  his  employer,  he 
must  pay  it. 

As  a  factor  has  possession  of  the  goods,  he  may  use  his  own  name 
in  all  his  transactions,  even  in  suits  at  law ;  but  a  broker  can  buy, 
sell,  receipt,  &c.,  only  in  the  name  of  his  employer.  So,  a  factor 
has  a  lien  on  the  goods  in  his  hands  for  his  advances,  his  expenses, 
and  his  commissions,  and  for  the  balance  of  his  general  account. 
And  the  factor  may  sell  from  time  to  time  enough  to  cover  his  ad- 
vances, unless  there  be  something  in  his  employment  or  in  his 
instructions  from  which  it  may  be  inferred  that  he  had  agreed  not 
to  do  so.  But  a  broker,  having  no  possession,  has  no  lien.  The 
broker  may  act  for  both  parties,  and  often  does  so.  But,  from  the 
nature  of  his  employment,  a  factor  should  act  only  for  the  party 
employing  him. 

A  broker  has  no  authority  to  receive  payment  for  the  goods  he 
sells,  unless  that  authority  be  given  him,  expressly  or  by  usage.  Nor 
will  payment  to  a  factor  discharge  a  debtor  who  has  received  notice 
from  the  principal  not  to  make  such  payment. 

Generally,  neither  factor  nor  broker  can  claim  theii  commissions 
until  their  whole  service  be  performed,  and  in  good  faith,  and  with 
proper  skill,  care,  and  industry ;  and  their  negligence  may  be  given 
in  evidence  either  to  lessen  their  compensation  or  commissions,  or 
to  bar  them  altogether.  But  if  the  service  begins,  and  is  interrupted 
wholly  without  their  fault,  they  may  claim  a  proportionate  compen- 
sation. If  either  bargains  to  give  his  whole  time  to  his  employer, 
he  will  not  be  permitted  to  derive  any  compensation  for  services 
rendered  to  other  persons.  Nor  can  either  have  any  valid  claim 
against  any  one  for  illegal  services,  or  those  which  violate  morality 
or  public  policy. 

A  principal  cannot  revoke  an  authority  given  to  a  factor,  after 
advances  made  by  the  factor,  without  repaying  or  securing  the 
factor. 

The  distinction  between  a  foreign  and  a  domestic  factor  is  quite 
important,  as  they  have  quite  different  rights,  duties,  and  powers, 
by  the  law-merchant  generally.  A  domestic  factor  is  one  who  is 


208  AGENCY. 

employed  and  acts  in  the  same  country  with  his  principal.  A  foreign 
factor  is  one  employed  by  a  principal  who  lives  in  a  diflferent  country ; 
and  a  foreign  factor  is  as  to  third  parties  —  for  most  purposes  and 
under  most  circumstances  —  a  principal.  Thus,  they  cannot  sue 
the  principal,  because  they  are  supposed  to  contract  with  the  factor 
alone,  and  on  his  credit,  although  the  principal  may  sue  them  ;  and 
a  foreign  factor  is  personally  liable,  although  he  fully  disclose  his 
agency,  and  his  principal  is  known. 

The  following  forms  of  powers  of  attorney  are  those  most 
frequently  required ;  and  from  them,  by  suitable  alterations,  powers 
of  attorney  may  be  framed  for  any  purpose. 


(71.) 
Power  of  Attorney. 

Know  all  Men  by  these  Presents,  That  I  (the  name  of  the 

principal  or  party  appointing)  of  (residence) 

have  constituted,  ordained,  and  made,  and  in  my  stead  and  place  put,  and  by 
these  presents  do  constitute,  ordain,  and  make,  and  in  my  stead  and  place  put 
(name  of  attorney)  to  be  my  true,  sufficient,  and  lawful  attorney  for  me  and  in  my 
name  and  stead  to  (here  set  forth  the  purposes  for  which  the  power  is  given) 

Giving  and  hereby  granting  unto  him,  the  said  attorney,  full  power  and  authority 
in  and  about  the  premises ;  and  to  use  all  due  means,  course,  and  process  in  law, 
for  the  full,  effectual,  and  complete  execution  of  the  business  afore  described ;  and 
in  my  name  to  make  and  execute  due  acquittance  and  discharge ;  and  for  the 
premises  to  appear,  and  the  person  of  me  the  constituent  to  represent  before  any 
governor,  judges,  justices,  officers,  and  ministers  of  the  law  whatsoever,  in  any  court 
or  courts  of  judicature,  and  there  on  my  behalf,  to  answer,  defend,  and  reply  unto 
all  actions,  causes,  matters,  and  things  whatsoever  relating  to  the  premises.  Also 
to  submit  any  matter  in  dispute,  respecting  the  premises,  to  arbitration  or  other- 
wise ;  with  full  power  to  make  and  substitute,  for  the  purposes  aforesaid,  one  or 
more  attorneys,  under  him,  my  said  attorney,  and  the  same  again  at  pleasure  to 
revoke.  And  generally  to  say,  do,  act,  transact,  determine,  accomplish,  and  finish 
all  matters  and  things  whatsoever  relating  to  the  premises,  as  fully,  amply  and 
effectually,  to  all  intents  and  purposes,  as  I  the  said  constituent, 

if  present,  ought  or  might  personally,  although  the  matter  should  require  more 
special  authority  than  is  herein  comprised,  I  the  said  constit- 

uent ratifying,  allowing,  and  holding  firm  and  valid  all  whatsoever  my  said  attor- 


FORMS  OF  PO~WER    OF  ATTORNEY,  ETC.  209 

ne}  or  his  substitutes  shall  lawfully  do,  or  cause  to  be  done,  in  and  about  the 
premises,  by  virtue  of  these  presents. 

In  "Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  in  the  year  of  our  Lord  eighteen 

hundred  and  sixty- 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of  us 

Sometimes  a  power  of  attorney  is  given  without  any  power  of  sub- 
stitution. This  may  be  by  inadvertence,  or  because  it  was  not 
intended  that  the  attorney  should  substitute  anybody  in  his  place. 
Afterwards,  it  is  desired  to  give  him  this  power  to  substitute  others. 
And  this  may  be  done  by  a  separate  instrument,  as  follows :  — 

(72.) 
Power  of  Substitution. 

Know  all  Men  by  these  Presents,  That  I, 

by  virtue  of  the  power  and  authority  to  me  given,  in  and  by  the  letter  of  attor- 
ney of  (the  principal)  which  is  hereunto  annexed  (or  described  without  being 
annexed),  do  make,  substitute  and  appoint  (name  of  substitute)  as  well  for  me 
as  the  true  and  lawful  attorney  and  substitute  of  the  said  constituent  named  in  the 
sai'l  letter  of  attorney,  to  do,  execute,  and  perform  all  and  every  thing  requisite  and 
necessary  to  be  done,  as  fully,  to  all  intents  and  purposes,  as  the  said  constituent  or 
I  myself  could  do  if  personally  present ;  hereby  ratifying  and  confirming  all  that  the 
said  attorney  and  substitute  hereby  made  shall  do  in  the  premises  by  virtue  hereof 
and  of  the  said  letter  of  attorney. 

In  "Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 

day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 

(Signature.)     (Sea!.) 
Executed  and  Delivered  in  the  Presence  of 

(73.) 
Power  of  Attorney  in  a  Shorter  Form. 

Know  all  Men  by  these  Presents,  That  I  (name  of  principal) 

have  made,  constituted  and  appointed,  and  by  these  presents  do  make,  constitute 
and  appoint          (name  of  attorney)  my  true  and  lawful  attorney  for  me  and  in  my 
name,  place,  and  stead  to 
(here  describe  the  thing  to  be  done) 
giving  and  granting  unto  my  said  attorney  full  power  and  authority  to  do  and 


210  AGENCY. 

perform  all  and  every  act  and  tiling  whatsoever  requisite  and  necessary  to  be  done 
in  and  about  the  premises,  as  fully  to  all  intents  and  purposes,  as  I  might  or  could 
do  if  personally  present,  with  full  power  of  substitution  and  revocation,  hereby 
ratifying  and  confirming  all  that  my  said  attorney  or  his  substitute  shall  lawfully 
do  or  cause  to  be  done  by  virtue  hereof. 

In  "Witness  "Whereof,  I  have  hereunto  set  my  hand  and  seal  the 

<jay  of  in  the  year  one  thousand  eight 

hundred  and 

(Signature.)     (Seal.) 

Executed  and  Delivered  in  the  Presence  of 


(74.) 
Full  Power  of  Attorney  to  demand  and  recover  Debts. 

Know  all  Men  by  these  Presents,  That  I  (name  of  principal) 

have  constituted,  ordained  and  made,  and  in  my  stead  and  place  put,  and  by 
these  presents  do  constitute,  ordain,  and  make,  and  in  my  stead  and  place  put 
(name  of  attorney")  to  be  my  true,  sufficient  and  lawful  attorney  for  me  and 
in  my  name  and  stead,  and  to  my  use,  to  ask,  demand,  levy,  require,  recover  and 
receive  of  and  from  all  and  every  person  or  persons  whomsoever  the  same  shall  or 
may  concern,  all  and  singular  sum  and  sums  of  money,  debts,  goods,  wares,  mer- 
chandise, effects  and  things,  whatsoever  and  wheresoever  they  shall  and  may  be 
found  due,  owing,  payable,  belonging  and  coming  unto  me  the  constituent,  by  any 
ways  and  means  whatsoever. 

Giving1  and  hereby  Granting1  unto  my  said  attorney  full  and  whole 
strength,  power  and  authority  in  and  about  the  premises ;  and  to  take  and  use 
all  due  means,  course  and  process  in  the  law,  for  the  obtaining  and  recovering 
the  same ;  and  of  recoveries  and  receipts  thereof,  and  in  my  name  to  make,  seal 
and  execute  due  acquittance  and  discharge ;  and  for  the  premises  to  appear,  and 
the  person  of  me  the  constituent  to  represent  before  any  governor,  judges,  justices, 
officers  and  ministers  of  the  law  whatsoever,  in  any  court  or  courts  of  judicature, 
and  there,  on  my  behalf,  to  answer,  defend  and  reply  unto  all  actions,  causes, 
matters  and  things  whatsoever,  relating  to  the  premises.  Also  to  submit  any  mat- 
ter in  dispute  to  arbitration  or  otherwise,  with  full  power  to  make  and  substitute 
one  or  more  attorneys  and  my  said  attorney,  and  the  same  again  at  pleasure  to 
revoke.  And  generally  to  say,  do,  act,  transact,  determine,  accomplish  and  finish 
all  matters  and  things  whatsoever,  relating  to  the  premises,  as  fully,  amply,  and 
effectually,  to  all  intents  and  purposes,  as  I  the  said  constituent  if  present,  ought 
or  might  personally,  although  the  matter  should  require  more  special  authority 
than  is  herein  comprised,  I  the  said  constituent  ratifying,  allowing  and  holding 
firm  and  valid,  all  and  whatsoever  my  said  attorneyor  his  substitutes  shall  law- 


FOEMS  OP  POWER  OF  ATTOENEY,  ETC.  211 

fully  do,  or  cause  to  be  done,  in  and  about  the  premises,  by  virtue  of  these 
presents. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

(Signature.')     (Seal.") 
Signed,  Sealed  and  Delivered  in  Presence  of  us, 


(75.) 

Power  of  Attorney  to  sell  and  deliver  Chattels. 

Know  all  Men  by  these  Presents,  That  I  the  undersigned,  for  value 
received,  do  hereby  irrevocably  constitute  and  appoint 

to  be  my  true  and  lawful  attorney,  for  me  and  in  my  name  and  behalf,  to  sell, 
transfer  and  deliver,  unto  or  any  other  person  or  persons 

(here  describe  the  things  to  be  sold) 

And  further,  one  or  more  persons  under  him  to  substitute  with  like  power. 
In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  18 

( Witnesses.)  (Signature.)     (Seal) 


(76.) 
Power  of  Attorney  given  by  Seller  to  Buyer. 

Know  all  Men  by  these  Presents,  That  I 

for  value  received,  have  bargained,  sold,  assigned  and  transferred,  and  by  these 
presents,  do  bargain,  sell,  assign  and  transfer,  unto  (name  of  the  buyer)  the  fol- 
lowing articles,  namely,  (describe  the  articles)  and  I  do  hereby  constitute  and  ap- 
point the  said  (the  buyer)  my  true  and  lawful  attorney  irrevocable,  for  me  and 
in  my  name  and  stead,  but  to  my  use,  to  sell,  assign,  transfer  and  set  over  all  or 
any  part  of  the  said  (the  goods)  and  for  that  purpose  to  make  and  execute  all 
necessary  acts  of  assignment  and  transfer,  and  one  or  more  persons  to  substitute 
with  like  full  power,  hereby  ratifying  and  confirming  all  that  my  said  attorney  or 
his  substitute  or  substitutes,  shall  lawfully  do  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 

day  of  one  thousand  eight  hundred 

and 

(Signature.)     (Seal) 
Signed,  Sealed  and  Delivered  in  Presence  of 


212  AGENCY. 


(77.) 

Power  of  Attorney  to  sell  Shares  of  Stock,  with  Appointment  by 
Attorney  of  Substitute. 

Know  all  Men  by  these  Presents,  That,  for  value  received,  I     (name 
of  the  principal)  of  do  hereby  make,  constitute,  and  appoint 

irrevocably,  my  true  and  lawful  attorney  (with  power  of  substitution), 

for  and  in  my  name  and  on  my  behalf,  to  sell,  assign,  and  transfer  unto  (name 

of  buyer)  share    now  standing  in  my  name 

hi  the  capital  or  joint  stock  of  the  And  my  said  attorney  is 

hereby  fully  empowered  to  make  and  pass  all  necessary  acts  for  the  said  assign- 
ment and  transfer. 

"Witness  my  hand  and  seal,  186 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 

For  value  received,  I  appoint,  irrevocably,       (name  of  the  substitute)  as  my  sub- 
stitute, with  all  the  powers  above  given  to  me. 

Witness  my  hand  and  seal,  186 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 


(78.) 
Power  of  Attorney  to  subscribe  for  Stock. 

Know  all  Men  by  these  Presents,  That  I  the  undersigned,  do  hereby 
irrevocably  constitute  and  appoint  to  be  my  true  and  lawful 

attorney,  for  me  and  in  my  name  and  behalf,  to  subscribe  for  shares  in  the 

capital  stock  of  the  And  further,  one  or  more  persons  under  him  to 

substitute  with  like  power. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  18 

Witnesses  present,  (Seal) 

(79.) 
Proxy,  or  Power  of  Attorney  to  vote. 

Know  all  Men  by  these  Presents,  That  I         (name  of  the  principal) 

do  hereby  appoint  to  be  my  substitute 

and  proxy  for  me  and  in  my  name  and  behalf  to  vote  at  any  election  of  directors 


FORMS  OF  POWER  OF  ATTORNEY,  ETC.  213 

or  other  officers,  and  at  any  meeting  of  the  stockholders  of  said  company  as  fully 
as  I  might  or  could  were  I  personally  present. 

In  "Witness  Whereof  I  have  hereunto  set  my  hand  and  seal  this  day  of 

18 
Witnesses  present,  (Signature.) 


(80.) 
Proxy,  revolting  all  Previous  Proxies. 

Know  all  Men  by  these  Presents,  That  I  the  undersigned,  stockholder 
in  the  (name  of  the  company)  do  hereby  appoint  my  true  and 

lawful  attorney,  with  power  of  substitution,  for  me  and  in  my  name,  to  vote  at  the 
meeting  of  the  stockholders  in  said  company,  to  be  held  at  or 

at  any  adjournment  thereof,  with  all  the  powers  I  should  possess  if  personally 
present,  hereby  revoking  all  previous  proxies. 

18 

Witness.  (Signature.) 


(81.) 

t 
Proxy,  with  Affidavit  of  Ownership,  in  Use  in  New  York. 

Know  all  Men  by  these  Presents,  That  I,  do  hereby 

constitute  and  appoint  my  attorney  and  agent  f&r  me  and  in  my 

name,  place,  and  stead,  to  vote  as  my  proxy  at  any  election  of  directors  of  the 

according  to  the  number  of  votes  I  should  be  entitled  to  vote 
if  then  personally  present. 

In  Witness  Whereof,  I  have  hereto  set  my  hand  and  seal,  this 
day  of  one  thousand  eight  Jiundred  and 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of 

I  do  swear  (or  affirm)  that  the  shares  on  which  my  attorney  and  agent  in  the 
above  proxy  is  authorized  to  vote,  do  not  belong,  and  are  not  hypothecated,  to  the 
said  company,  and  that  they  are  not  hypothecated  or  pledged  to  any  other  cor- 
poration or  person  whatever ;  that  such  shares  have  not  been  transferred  to  me 
for  the  purpose  of  enabling  me  to  vote  thereon  at  the  ensuing  election,  and  that  I 
have  not  contracted  to  sell  or  transfer  them  upon  any  condition,  agreement,  or 
understanding,  in  relation  to  my  manner  of  voting  at  the  said  election. 

Sworn  to  this  day  of  18        ,  before  me, 

(Signature.) 


214  PARTNERSHIP. 

(82.) 
Power  to  receive  Dividend* 

Know  all  Men  by  these  Presents,  That  I  of 

do  authorize,  constitute,  and  appoint  to  receive 

from  the  (name  of  the  company)  the  dividend  now  due  to  me  on  all  stock 

standing  to  my  name  on  the  books  of  the  said  company,  and  receipt  for  the  same : 
hereby  ratifying  and  confirming  all  that  may  lawfully  be  done  in  the  premises  by 
virtue  hereof. 

"Witness  my  hand  and  seal  this  day  of  18 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 


CHAPTER 

PARTNERSHIP. 

SECTION  I. 
WHAT   A    PARTNERSHIP   IS. 

WHEN  two  or  more  persons  combine  their  property,  labor,  or  skill, 
for  the  transaction  of  business  for  their  common  profit,  they  enter 
into  partnership.  Sometimes  the  word  "  firm  "  is  used  as  synony- 
mous with  partnership;  sometimes,  however,  it  means  only  the 
copartnership-name. 

A  single  joint  transaction,  out  of  which,  considered  by  itself, 
neither  profit  nor  loss  arises,  will  not  create  a  partnership.  If  a 
joint  purchase  be  made,  and  each  party  then  takes  his  distinct  and 
several  share  of  the  goods,  this  is  no  partnership. 

Any  persons  competent  to  transact  business  on  their  own  account 
may  enter  into  partnership  for  that  purpose,  and  no  others. 


HOW  A  PARTNERSHIP  MAY  BE  FORMED.  215 

SECTION  H. 
HOW  A  PARTNERSHIP  MAY  BE   FORMED. 

No  especial  form  or  manner  is  necessary.  It  may  be  by  oral 
agreement,  or  by  a  written  agreement,  which  may  have  a  seal  or 
not.  But  the  liability  and  authority  of  the  partners  begin  with  the 
actual  formation  of  the  partnership,  and  do  not  wait  for  the  execution 
of  any  articles.  In  general,  if  there  be  an  agreement  to  enter  into 
business,  or  into  some  particular  transaction,  together,  and  share  the 
profits  and  losses,  this  constitutes  a  partnership,  which  is  just  as 
extensive  as  the  business  proposed  to  be  done,  and  not  more  so. 
The  parties  may  agree  to  share  the  profits  in  what  proportion  they 
choose ;  but  in  the  absence  of  any  agreement,  the  law  presumes  equal 
shares. 

They  may  agree  as  to  any  way  of  dividing  the  losses,  or  even  that 
one  or  more  partners  alone  shall  sustain  them  all,  without  loss  to 
the  rest.  And  this  agreement  is  valid  as  between  themselves ;  but 
it  will  not  protect  those  partners  who  were  to  sustain  no  loss  from 
responsibility  to  third  parties,  unless  the  third  parties  knew  of  this 
agreement  between  the  partners,  and  gave  credit  accordingly.  If 
A,  B,  &  C,  being  partners,  agree  that  A  should  not  lose  any  thing 
by  their  business,  and  a  person  knowing  this  bargain  dealt  with 
the  firm  on  the  credit  of  B  &  0,  he  could  not  call  on  A.  But 
an  agreement  exempting  partners  from  loss  generally,  or  from  loss 
beyond  the  amount  invested,  will  only  operate  between  the  part- 
ners, unless  it  can  be  shown  that  the  third  party  not  only  knew  the 
agreement,  but  contracted  with  the  firm  on  the  basis  of  this  agree- 
ment. And,  generally,  stipulations  in  articles  of  copartnership 
limiting  the  power  of  a  partner,  are  not  binding  on  third  parties 
who  are  ignorant  of  them.  Each  partner  is  absolutely  responsible 
to  every  creditor  of  the  copartnership  for  the  whole  amount  of  the 
debt.  And,  if  thereby  obliged  to  suffer  loss,  his  only  remedy  is 
against  the  other  partners. 

Although  partners  may  agree  and  provide  as  they  will  in  their 
articles,  a  long  neglect  of  these  provisions  will  be  regarded  as  a 
mutual  waiver  of  them. 


216  PARTNERSHIP. 

Persons  may  be  liable  as  partners  to  third  parties  or  strangers, 
who  are  not  partners  as  between  themselves.  Whether  they  are 
partners  as  to  each  other  would  generally  be  determined  by  the  in- 
tention of  the  parties,  as  drawn  from  their  contract,  —  whether  oral 
or  written,  —  under  the  ordinary  rules  of  evidence  and  construction. 
But  whether  one  is  liable  as  a  partner  to  one  who  deals  with  the 
firm  must  depend  in  part  upon  his  intention,  but  more  upon  his 
acts ;  for  if  by  them  he  justifies  those  who  deal  with  the  firm  in 
thinking  him  a  partner  in  that  business,  he  must  bear  the  responsi- 
bility ;  as  if  he  declare  that  he  has  a  joint  interest  in  the  property, 
or  conducts  the  business  of  the  firm  as  a  partner,  accepting  bills,  or 
suffers  his  name  to  be  used  upon  cards,  or  in  advertisements,  or  on 
signs,  or  in  any  similar  manner.  The  declarations  or  acts  of  one 
person  cannot,  however,  make  another  person  liable  as  partner, 
without  co-operation  or  consent,  by  word  or  act,  on  his  part.  The 
rule  is  this :  that  one  who  thus  holds  himself  out  as  a  partner,  when 
he  really  is  not  one,  is  responsible  to  a  creditor  who  on  these 
grounds  believed  him  to  be  a  partner ;  but  not  to  one  who  knew 
nothing  of  the  facts,  or  who,  knowing  them,  knew  also  that  this 
person  was  not  a  partner. 

A  secret  partner  is  one  who  is  actually  a  partner  by  participation 
of  profit,  but  is  not  avowed  or  known  to  be  such ;  and  a  dormant 
partner  is  one  who  takes  no  share  in  the  conduct  or  control  of  the 
business  of  the  firm.  Both  of  these  are  liable  to  creditors  (even  if 
the  creditors  did  not  know  them  to  be  members  of  the  firm),  on  the 
ground  of  their  interest  and  participation  in  the  profits,  which  consti- 
tute, with  the  property  of  the  firm,  the  funds  to  which  creditors  may 
look  for  payment.  A  nominal  partner  is  one  who  holds  himself  out 
to  the  world  as  such,  but  is  not  so  in  fact.  He  is  liable  to  creditors 
of  the  firm,  on  the  ground  that  he  justifies  them  in  trusting  the  firm 
on  his  credit,  and,  indeed,  invites  them  to  do  so,  by  declaring  himself 
to  be  a  partner. 

The  principal  test  of  membership  in  a  mercantile  firm  is  said  to  be 
the  participation  in  the  profits.  Thus,  if  one  It-nd  money  to  be  used 
in  a  business,  for  which  he  is  to  receive  a  share  in  the  profits,  this 
would  make  him  a  partner  ;  and  if  he  is  to  receive  lawful  interest, 
and,  in  addition  thereto,  a  share  of  the  profits,  this  would  generally 
make  him  liable  as  a  partner  to  a  creditor  of  the  firm. 


HOW  A  PARTISTEESHIP  MAY  BE  DISSOLVED.  217 

Sometimes  a  clerk  or  salesman,  or  a  person  otherwise  employed 
for  the  firm,  receives  a  share  of  the  profits,  instead  of  wages.  For- 
merly it  was  held,  that  if  such  person  received  any  certain  share, 
say  "  one-tenth  part  of  the  net  annual  profits,"  this  made  him  liable 
as  a  partner ;  but  if  he  received  "  a  salary  equal  in  amount  to  one- 
tenth  of  the  net  profits,"  this  did  not  make  him  a  partner.  Now, 
the  courts  would  look  more  at  the  actual  intention  of  the  parties, 
and  their  actual  ownership  of  an  interest  in  the  funds  of  the  partner- 
ship, and  not  be  governed  by  the  mere  phraseology  used.  If  in  fact 
he  works  for  wages,  although  these  wages  are  measured  by  the 
profits,  he  is  no  partner,  and  therefore  not  liable  for  the  debts,  as 
every  partner  is. 

Hence,  factors  and  brokers  for  a  commission  on  the  profits, 
masters  of  vessels  who  engage  for  a  share  of  the  profits,  or  seamen 
employed  in  whale-ships,  are  none  of  them  partners. 

A  partnership  usually  has  but  one  business  name  ;  but  there  does 
not  seem  to  be  any  legal  objection  to  the  use  of  two  names,  especially 
for  distinct  business  transactions  ;  as  A  B  &  Co.  for  general  business, 
and  the  name  of  A  C  &  Co.  for  the  purpose  of  making  or  indorsing 
negotiable  paper. 


SECTION  m. 

HOW    A   PARTNERSHIP   MAT   BE   DISSOLVED. 

IF  the  articles  between  the  partners  do  not  contain  an  agreement 
that  the  partnership  shall  continue  for  a  specified  time,  it  may  be  dis- 
solved at  the  pleasure  of  either  partner.  But  no  partner  can 
exercise  this  power  wantonly  and  injuriously  to  the  other  partners, 
without  making  himself  responsible  for  the  damage  he  thus  causes. 
If  there  be  a  provision  that  the  partnership  shall  continue  a  certain 
time,  this  is  binding. 

If  either  partner  were  to  undertake  to  assign  his  interest,  for  the 
purpose  of  withdrawing  from  the  firm,  against  the  will  of  the 
partners,  without  good  reason,  and  in  fraud  of  his  express  agree- 
ment, a  court  of  equity  would  interfere  and  prevent  him.  For  the 


218  PARTNERSHIP. 

assignment  of  a  partner's  interest,  or  of  his  share  of  the  profits, 
operates  at  once  a  dissolution  of  the  partnership. 

Such  assignment  may  transfer  to  the  assignee  the  whole  interest 
of  the  assignor,  but  cannot  give  him  a  right  to  become  a  member  of 
the  firm.  There  seems  to  be  an  exception  to  this  rule  where  the 
partnership  is  very  numerous,  and  the  manner  of  holding  shares,  by 
scrip  or  otherwise,  indicates  the  original  intention  of  making  the 
shares  transferable.  Such  a  partnership  is  in  effect  a  joint-stock 
company ;  which  form  of  association  is  not  usual  here,  because  incor- 
poration is  better,  and  is  easily  obtained. 

Death  of  a  general  or  even  of  a  special  partner  operates  a  disso- 
lution ;  and  the  personal  representatives  of  the  deceased  do  not  take 
his  place,  unless  there  be  in  the  articles  an  express  provision  that 
they  shall.  And  such  provisions  are  construed  as  giving  the  heirs 
or  personal  representatives  the  right  of  electing  whether  to  become 
partners  or  not.  If  either  party  is  unable  to  do  his  duty  to  the 
partnership,  as  by  reason  of  insanity,  or  a  long  imprisonment ;  or  if 
he  be  guilty  of  material  wrong-doing  to  the  firm ;  a  court  of  equity 
will  decree  a  dissolution.  And  if  the  original  agreement  were 
tainted  with  fraud,  the  court  will  declare  it  void,  from  its  beginning. 

"Whenever  a  court  of  equity  decrees  a  dissolution  of  the  partner- 
ship, it  will  also  decree  that  an  account  be  taken  between  the 
partners,  if  requested  by  either  partner.  And  if  necessary  to  do 
justice,  it  will  decree  a  sale  of  the  effects  and  a  distribution  of  the 
proceeds,  after  a  consideration  of  all  the  facts  of  the  case  and  the 
whole  condition  of  the  firm.  Such  a  decree  will  be  made  if  a  part- 
ner die  or  become  bankrupt. 

If  the  whole  interest  of  a  copartner  is  levied  upon  and  sold  on 
execution,  this  makes  a  dissolution,  and  the  purchaser  becomes,-  - 
like  every  other  assignee  of  a  partner,  —  not  a  partner,  but  onlj  a 
tenant  in  common  (that  is,  a  joint  owner)  with  the  other  partners ; 
but  if  the  levy  and  sale  are  only  of  a  part,  which  may  be  severed 
from  the  rest,  this  may  not  operate  a  dissolution  except  as  to  that 
part. 

If  one  partner  retires,  this  operates  in  law  a  dissolution,  and  the 
remaining  partners  constitute  in  law  a  new  firm,  although  in  fact 
the  old  firm  frequently  continues  and  goes  on  with  its  business,  with 
or  without  new  members,  as  if  it  were  the  same  firm. 


THE  PROPERTY  OF  THE  PARTNERSHIP.         219 

The  partner  retiring  should  withdraw  his  name  from  the  firm,  and 
give  notice,  by  the  usual  public  advertisement,  of  his  retirement, 
and  also,  by  personal  notice,  by  letter  or  otherwise,  to  all  who 
usually  do  business  with  the  firm ;  and  after  such  notice  he  is  not 
responsible,  even  if  his  name  be  retained  in  the  firm  by  the  other 
partners,  if  this  is  done  without  his  consent.  Nor  is  he  responsible 
to  any  one  who  has  in  any  way  actual  knowledge  of  his  retirement. 

A  dormant  or  secret  partner  is  not  liable  for  a  debt  contracted  after 
his  retirement,  although  he  give  no  notice ;  because  his  liability  does 
not  rest  upon  his  giving  his  credit  to  the  firm,  but  upon  his  being 
actually  a  partner. 


SECTION  IV. 
THE  PROPERTY  OF  THE  PARTNERSHIP. 

A  PARTNERSHIP  may  hold  real  estate  as  well  as  personal  estate, 
and  a  partnership  may  be  formed  to  trade  in  land,  or  to  cultivate 
land.  But  the  rules  of  law  in  respect  to  real  estate,  as  in  relation 
to  title,  conveyance,  dower,  inheritance,  and  the  like,  make  some 
difference .  As  far,  however,  as  is  compatible  with  these  rules,  it 
seems  to  be  agreed  that  the  real  estate  of  the  partnership  is  treated 
as  if  it  were  personal  property,  if  it  have  been  purchased  with  the 
partnership  funds  and  for  partnership  purposes. 

There  is  some  difficulty  in  explaining  this  matter  to  those  who 
are  not  acquainted  with  the  peculiar  law  of  real  estate.  Thus,  no 
sale  of  land  is  valid  except  by  deed,  recorded:  and  only  one  who  is 
thus  a  grantee  under  seal  by  record  has  a  legal  title.  But  a  court 
of  equity  acknowledges  and  protects  an  equitable  title  in  those  who 
really  possess  all  the  interest  in  the  land  ;  as  partners  do  who  have 
paid  for  it,  though  it  stands  in  the  name  of  one  partner  only.  But 
a  court  of  equity  cannot  disregard  the  laws  of  conveyance  and 
record,  and  therefore  says  that  this  partner  is  the  only  legal  owner, 
but  that  he  owns  the  land  as  trustee  for  the  firm.  And  then  they 
compel  him  to  sell  it,  or  otherwise  dispose  of  it,  as  the  interests  of 
the  firm  or  of  their  creditors  require. 

16 


220  PABTNERSHIP 

So  land  thus  purchased  does  not  go  to  the  heirs  of  the  partner  or 
partners  in  whose  name  it  may  stand,  but  is  first  subject  to  the 
debts  of  the  firm,  and  then  to  the  balance  which  may  be  due  to  either 
partner  on  winding  up  their  affairs.  But  when  these  debts  and 
claims  are  adjusted,  any  surplus  of  the  real  estate  will  then  descend 
as  real  estate,  and  not  as  personal  estate. 

Improvements  made  with  partnership  funds  on  the  real  estate  of 
a  partner  will  be  regarded  as  partnership  property. 

The  widow  has  her  dower  only  after  the  above-mentioned  debts 
and  claims  are  adjusted.  And  while  the  legal  title  is  protected,  as 
it  must  be  for  the  purpose  of  conveyance  and  other  similar  purposes, 
the  person  holding  this  legal  title  will  be  held  as  a  trustee  for  the 
partnership,  if  the  partnership  be  entitled  to  the  beneficiary  interest. 

But  a  purchaser  of  partnership  real  property,  without  notice  or 
knowledge,  from  a  partner  holding  the  same  by  a  legal  title,  is  pro- 
tected against  the  other  partners.  If,  however,  the  purchaser  has 
such  knowledge,  the  conveyance  may  be  avoided  as  fraudulent,  or  he 
may  be  held  as  trustee,  the  land  being  in  his  hands  chargeable  with 
the  debts  and  claims  of  the  partnership. 


SECTION  V. 

THE    AUTHORITY    OF    EACH     PARTNER,     AND    THE     JOINT    UABUJT? 
OF    THE    PARTNERSHIP. 

THIS  authority  is  very  great,  because  the  law-merchant  makes 
each  partner  an  agent  of  the  whole  partnership,  with  full  power  to 
bind  all  its  members  and  all  its  property,  in  transactions  which  fall 
within  the  usual  business  of  the  firm ;  as  loans,  borrowing,  sales, 
even  of  the  whole  stock,  pledges,  mortgages,  or  assignments ;  and 
this  last  extends  even  to  an  honest  and  prudent  assignment  of  the 
whole  stock  and  personal  property  to  trustees  to  pay  partnership 
debts.  It  extends  to  the  making  or  indorsing  negotiable  paper ; 
and  to  transactions  out  of  the  usual  business  of  the  firm,  if  they 
arose  from  and  were  fairly  connected  with  that  business. 

Nor  is  any  party  dealing  with  a  partner  affected  by  his  want  of 


AUTHORITY  OF  EACH  PARTNER,  ETC.          221 

good  faith  towards  the  partnership,  unless  he  colluded  with  the  part- 
ner, and  participated  in  his  want  of  good  faith,  by  fraud  or  gross 
negligence.  But  a  holder  of  a  note  or  bill  signed  or  indorsed  by  a 
partner  without  authority  has  no  claim  against  the  partnership,  if 
h«  knew  or  should  have  known  the  want  of  authority. 

A  partner  cannot,  in  general,  bind  the  firm  by  a  guaranty,  a  let- 
ter of  credit,  or  a  submission  to  arbitration,  without  authority, 
because  these  things  do  not  belong  generally  and  properly  to  com- 
mercial business.  But  any  thing  so  done  by  a  partner  may  be  adopt- 
ed and  ratified  by  the  partnership,  and  then  it  has  the  same  force 
as  if  originally  authorized.  And  this  ratification  may  be  formal  and 
express,  or  consist  only  of  acts  which  distinctly  imply  it ;  such  as 
assenting  to  and  acting  with  reference  to  it ;  and  especially  receiv- 
ing and  holding  the  beneficial  results  of  it ;  as,  for  example,  taking 
and  holding  money  paid  for  it. 

By  the  earlier  and  more  stringent  rules  of  law,  a  partner  could 
not  bind  his  copartners  by  an  instrument  under  seal,  unless  he  was 
himself  authorized  under  seal ;  and  their  subsequent  acknowledg- 
ment of  his  authority  did  not  cure  the  defect.  Now,  however,  a 
partner  may  bind  his  firm  by  an  instrument  under  seal,  if  it  be  in 
the  name  and  for  the  use  of  the  firm,  and  in  the  transaction  of  their 
U3ual  business,  provided  the  other  copartners  assent  thereto  before 
execution,  or  adopt  and  ratify  the  same  afterwards  ;  and  they  may 
assent  or  ratify  by  word  as  well  as  by  seal ;  or  provided  he  could  have 
made  the  same  conveyance,  or  done  the  same  act  effectually,  with- 
out a  deed.  And  a  deed  executed  by  one  partner  in  the  presence 
and  with  the  assent  of  the  other  partners  will  bind  them. 

A  partnership  has  no  seal  at  law,  and  can  have  none  :  only  a  per- 
son or  a  corporation  can  have  a  seal.  Instruments  are  sometimes 
executed,  "  A  B  &  Co.,"  and  a  seal  is  affixed  to  the  name.  This  is, 
strictly  speaking,  no  seal  at  all ;  and  if  the  instrument  needs  a  seal 
to  make  it  valid,  as  if  it  were  a  deed  of  land,  it  would,  at  law,  be 
wholly  void.  But  the  courts  in  some  of  our  States  are  somewhat 
lax  on  this  subject,  and  might  construe  it  as  the  seal  of  each  one  of 
the  partners  to  give  the  instrument  validity. 

A  majority  of  the  members  cannot  conclusively  bind  the  minority, 
unless  in  reference  to  the  internal  concerns  of  the  firm ;  as,  for 


222  PAETNEESHIP. 

example,  the  salary  or  appointment  of  a  clerk,  the  hiring  or  fitting- 
up  of  a  counting-room,  the  manner  of  keeping  accounts,  and  the 
like.  But  one  member  may,  so  far  as  he  is  concerned,  arrest  a 
negotiation  which  was  only  begun,  and  prevent  a  bargain  which 
would  be  binding  on  him,  by  giving  notice  to  the  third  party  of  his 
dissent  and  refusal  in  season  to  enable  him  to  decline  the  bargain 
without  detriment. 

Partners  must  act  as  such,  to  bind  each  other.  Thus,  if  a  partner 
makes  a  note,  and  signs  it  with  his  own  name  and  his  partner's  name, 
as  a  joint  and  several  note,  it  does  not  bind  his  partner,  for  he  had 
no  authority  to  make  such  a  note. 

If  the  name  of  one  partner  be  also  the  name  of  the  firm,  —  for 
John  Smith  and  Henry  Robinson  may  do  business  as  partners  under 
the  name  of  "John  Smith," — this  name  is  not  necessarily  the 
name  of  the  firm  when  used  in  a  note  or  contract ;  and  if  the  part- 
ner whose  name  is  used  carries  on  mercantile  business  for  himself, 
it  will  not  be  supposed  to  be  used  as  the  name  of  the  firm,  without 
sufficient  proof. 

Persons  may  give  a  joint  order  for  goods  without  becoming  jointly 
liable,  if  it  appear  otherwise  that  credit  was  given  to  them  severally. 
Nor  will  one  have  either  the  authority  or  the  obligation  of  a  partner 
cast  upon  him  by  an  agreement  of  the  firm  to  be  governed  by  his 
advice.  Nor  shall  one  be  charged  as  partner  with  others,  unless  he 
has  incurred  the  liability  by  his  own  voluntary  act. 

The  reception  of  a  new  member  constitutes,  in  law,  a  new  firm  ; 
but  the  new  firm  may  recognize  the  old  debts,  as  by  express  agree- 
ment, or  paying  interest,  or  other  evidence  of  adoption,  and  then 
the  new  firm  is  jointly  liable  for  the  old  debt.  But  there  must  be 
some  fact  from  which  the  assent  of  the  new  member  to  this  adop- 
tion of  the  old  debt  may  be  inferred,  for  his  liability  is  not  to  be 
presumed. 

A  notice  in  legal  proceedings,  abandonment  to  insurers  by  one 
who  was  insured  for  himself  and  others,  a  notice  to  quit  of  one  of 
joint  lessors  or  lessees  who  are  partners  in  trade,  notice  to  one  part- 
ner of  the  dishonor  of  a  note  or  bill  bearing  the  name  of  the  firm, 
a  release  to  one  partner,  or  by  one  partner,  —  will  bind  all  the  part- 
ners, and  render  them  jointly  liable.  But  a  service  of  legal  process 
should  be  made  upon  each  partner  personally. 


AUTHORITY  OF  EACH  PARTNER,  ETC.          223 

If  money  be  lent  to  a  partner  for  partnership  purposes,  it  creates 
a  partnership  debt ;  but  not  if  lent  expressly  on  the  individual 
credit  of  the  person  borrowing  ;  and  not  if  the  borrowing  partner 
receives  it  to  enable  him  to  pay  his  contribution  to  the  capital  of  the 
firm.  Though  the  money  be  not  used  for  the  firm,  if  it  was  bor- 
rowed by  one  partner  on  the  credit  of  the  firm,  in  a  manner  and 
under  circumstances  justifying  the  lender  in  trusting  to  that  credit, 
it  creates  a  partnership  debt.  And  if  a  partner  uses  funds  in  his 
hands  as  trustee,  for  partnership  purposes,  the  firm  are  certainly 
jointly  bound,  if  it  was  done  with  their  knowledge.  And  if  it  was 
done  without  their  knowledge,  and  the  partners  are  distinctly  and 
directly  benefited  by  the  transaction,  they  will  be  deemed  to  have 
authorized  it. 

If  in  any  case  a  person,  knowing  the  existence  of  the  firm,  gave 
credit  to  a  single  partner  only,  then  he  can  look  only  to  that  partner, 
and  not  to  the  firm,  although  the  money  was  applied  to,  and  used 
for,  partnership  purposes.  But  if  the  partner  held  himself  out  as 
borrowing  for  the  firm,  and  the  lender  without  any  want  of  due 
care  gave  credit  to  the  firm,  and  the  transaction  was  a  fair  business 
transaction  on  the  part  of  the  lender,  the  firm  will  be  liable,  although 
the  money  is  fraudulently  appropriated  by  the  partner  to  his  own 
use. 

In  the  absence  of  evidence  showing  to  whom  the  credit  was  given, 
the  fact  that  money  lent  to  one  partner  was  applied  to  the  use  of  the 
firm  will  make  the  firm  liable  for  the  payment ;  but  not  if  the  part- 
ner employed  it  as  his  contribution  to  increase  the  capital  of  the 
firm. 

If  the  purchaser  of  goods  or  the  borrower  of  money  have  a  dor- 
mant and  secret  partner,  and  the  goods  were  bought  or  the  money 
borrowed  for  partnership  purposes,  the  seller  or  lender  may  look  to 
both  partners  for  payment,  unless  the  seller  or  lender,  knowing  all 
the  partners,  gave  credit  to  one  only. 

The  firm  is  liable  only  to  one  who  deals  with  a  partner  in  good 
faith.  Thus,  if  one  receives  negotiable  paper  bearing  the  name  of 
a  firm,  knowing  that  it  is  not  in  the  business  of  the  firm,  and  is 
given  for  no  consideration  received  by  the  firm,  he  cannot  hold  the 
firm.  And  if  a  creditor  of  one  partner  receive  for  his  separate 


224  PARTNERSHIP. 

debt  a  partnership  security,  this  would  be  a  fraud,  unless  the  part- 
ner had,  or  was  supposed  by  the  creditor  to  have,  the  authority  of 
the  rest. 

If  he  supposed  the  partner  had  this  authority,  he  cannot  hold  the 
partnership  if  the  partner  had  not  the  authority,  unless  the  partner- 
ship had  caused  him  to  believe  it.  And  if  the  partnership  security 
be  transferred  for  two  considerations,  one  of  which  is  private  and 
fraudulent,  and  the  other  is  joint  and  honest,  the  partnership  is 
bound  for  so  much  of  it  as  is  not  tainted  with  fraud,  and  only  for 
that. 

The  partnership  may  be  liable  for  injury  caused  by  the  criminal 
or  wrongful  acts  of  a  partner,  if  these  were  done  in  the  transaction 
of  partnership  business,  and  if  it  was  the  partnership  which  gave  to 
the  wrong-doer  the  means  and  opportunity  of  doing  the  wrong.  But 
an  illegal  contract  will  not  bind  the  copartners,  for  the  parties  enter- 
ing into  it  must  be  presumed  to  know  its  illegality ;  and  the  law 
enforces  no  bargain  that  is  contrary  to  law. 

The  acknowledgment  of  one  who  had  been  a  partner,  after  the 
dissolution  of  the  partnership,  may  take  the  debt  out  of  the  statute 
of  limitations  as  to  him,  but  not  so  as  to  restore  the  liability  of  all 
the  partners  without  their  assent. 


SECTION  VI. 

REMEDIES    OP    PARTNERS    AGAINST    EACH    OTHER. 

IT  is  seldom  that  a  partner  can  have  a  claim  against  another 
partner,  as  such,  which  can  be  examined  and  adjusted  without  an 
investigation  into  the  accounts  of  the  partnership,  and,  perhaps,  a 
settlement  of  them.  Courts  of  law  have  ordinarily  no  adequate 
means  of  doing  this ;  and  therefore  it  is  generally  true  that  no  part- 
ner can  sue  a  copartner  at  law  for  any  claim  growing  out  of  partner- 
ship transactions  and  involving  partnership  interests.  But  the  ob- 
jection to  a  suit  at  law  between  partners  goes  no  further  than  the 
reason  of  it ;  and,  therefore,  one  may  sue  his  copartner  upon  his 
agreement  to  do  any  act  which  is  not  so  far  a  partnership  matter  as 
to  involve  the  partnership  accounts. 


REMEDIES   OP  PARTNERS  AGAINST  EACH  OTHER.  225 

If  the  accounts  are  finally  adjusted,  either  partner  may  sue  for  a 
balance ;  and  so  it  would  be  if  the  accounts  generally  remained 
open,  but  a  specific  part  of  them  were  severed  from  the  rest,  and  a 
balance  found  on  that.  The  rule  is  generally  laid  down,  that  an 
action  cannot  be  sustained  by  a  partner  against  a  partner  for  a 
balance,  unless  there  is  an  express  promise  to  pay  it.  But  such 
promise  would  be  inferred  in  all  cases  in  which  an  account  had 
been  taken,  and  a  balance  admitted  to  be  due. 

In  general,  any  action  at  law  between  partners  can  be  maintained, 
only  when  a  rendering  of  judgment  in  this  action  will  completely  ter- 
minate all  partnership  matters,  so  that  no  further  cause  of  action 
can  grow  out  of  them. 

"What  a  court  of  law  cannot  do  as  to  actions  between  partners  a 
court  of  equity  can ;  and,  generally,  a  court  of  equity  has  a  full 
jurisdiction  over  all  disputes  and  claims  between  partners,  and 
may  do  whatever  is  necessary  to  settle  them  in  conformity  with 
justice. 

A  partner  may  sue  his  copartner  for  money  advanced  before  the 
partnership  was  formed,  although  the  loan  was  made  to  promote  the 
partnership.  And  for  work  done  for  the  firm  before  he  became  a 
member  of  it,  he  may  sue  those  who  were  members  when  he  did 
the  work.  And  he  may  sue  a  copartner  on  his  note  or  bill,  although 
the  consideration  was- on  partnership  account;  but,  in  general,  no 
action  at  law  can  be  maintained  for  work  and  labor  performed,  or 
money  expended  for  the  partnership. 

A  partner  who  pays  more  than  his  proportion  of  a  debt  of  the  part- 
nership cannot  demand  specific  contribution  from  his  copartners, 
but  must  charge  his  payment  to  the  firm.-  The  reason  is,  that  they 
may  have  claims  against  him  on  other  accounts,  and  they  must  be 
all  settled  together  to  strike  the  balance. 

If  one  of  a  firm  be  a  member  also  of  another  firm,  the  one  firm 
cannot  sue  the  other ;  for  the  same  person  cannot  be  plaintiff  and 
defendant  of  record.  A  cannot  sue  A ;  and  therefore  A,  B,  &  0 
cannot  sue  C,  D,  &  E.  In  all  these  cases  an  adequate  remedy  may 
be  found  in  a  court  of  equity. 

If  a  firm  have  a  negotiable  note  which  it  cannot  sue,  because  one 
of  its  own  firm  is  liable  upon  it  and  must  be  made  defendant,  it  can 


226  PARTNERSHIP. 

indorse  the  note  over,  and  the  indorsee  may  sue  it  in  his  own  name, 
as  we  have  before  stated. 

The  partners  are  entitled  to  perfect  good  faith  from  each  copart- 
ner ;  and  a  court  of  equity  will  interfere  to  enforce  this.  No  partner 
will  be  permitted  to  treat  privately,  and  for  his  own  benefit  alone, 
for  a  renewal  of  a  lease,  or  to  transfer  to  himself  any  benefit  or 
interest  properly  belonging  to  the  firm.  And  so  careful  is  a  court 
of  equity  in  this  respect,  that  it  will  not  permit  a  copartner,  by  his 
private  contract  or  arrangement,  to  subject  himself  to  a  bias  or  inter- 
est which  might  be  injurious  to  the  firm,  and  conflict  with  his  duty 
to  them,  but  will  declare  void  any  contract  of  this  kind. 


SECTION  TH. 

BIGHTS    OF    THE    FIRM    AGAINST    THIRD    PARTIES. 

IF  a  partner  sells  the  goods  of  the  firm  in  his  own  name,  the  firm 
may  sue  for  the  price.  But  the  rights  of  one  who  deals  in  good 
faith  with  a  copartner,  as  with  him  alone,  are  so  far  regarded,  that 
he  may  set  off  any  claim,  or  make  use  of  any  other  defences  against 
the  suit  of  the  firm,  which  he  could  have  made  had  the  person  with 
whom  he  dealt  sued  alone. 

Therefore,  if  A  honestly  bought  goods  of  a  firm  from  a  partner 
whom  he  supposed  to  be  sole  owner  of  them,  and  paid  him  the 
price,  the  firm  cannot  recover  this  price  from  the  buyer,  although 
the  seller  sold  the  goods  fraudulently,  and  cheated  the  firm  out  of 
the  money,  but  must  charge  the  price  to  the  selling  partner. 

A  guaranty  to  a  copartner,  if  for  the  use  and  benefit  of  the  firm, 
gives  to  them  a  right  of  action. 

A  new  firm,  created  by  some  change  in  the  membership  of  an  old 
firm,  is  entitled  to  the  benefit  of  a  guaranty  given  tc  the  old  hrm, 
even  if  sealed,  provided  it  shall  distinctly  appear  that  the  instrument 
was  intended  to  have  that  effect,  and  extend  to  the  new  firm. 


EIGHTS    OP  CEEDITOES  IN  EBSPECT  TO  FUNDS.  227 

SECTION  vm. 

BIGHTS    OP    CREDITORS    IN    RESPECT    TO    FUNDS. 

THE  property  of  a  partnership  is  bound  to  pay  the  partnership 
debts ;  and,  therefore,  a  creditor  of  one  copartner  has  no  claim  to 
the  partnership  funds  until  the  partnership  debts  are  paid.  If  there 
be  then  a  surplus,  he  may  have  that  copartner's  interest  therein,  in 
payment  of  his  private  debt. 

If  a  private  creditor  attaches  partnership  property,  or  in  any  way 
seeks  to  appropriate  it  to  his  private  debt,  the  partnership  debts 
being  unpaid,  he  cannot  hold  it,  either  at  law  or  in  equity.  Such 
attachment  or  appropriation  is  wholly  subject  to  the  paramount 
claims  of  the  partnership  creditors,  and  is  wholly  defeated  by  the 
insolvency  of  the  partnership,  although  the  partnership  creditors 
have  not  brought  any  actions  for  their  debts. 

Hence,  if  a  creditor  of  A  attaches  his  interest  in  the  property  of 
A,  B,  &  Co.,  and  a  creditor  of  A,  B,  &  Co.  attaches  the  same 
property,  the  first  attachment  is  postponed  to  the  second ;  that  is,  it 
has  no  effect  until  the  debt  of  the  second  creditor  is  fully  satisfied, 
and  then  it  is  good  for  the  surplus  of  property.  If,  however,  one 
partner  is  dormant  and  unknown,  the  creditor  of  the  other  attach- 
ing the  stock  is  not  postponed  to  the  creditor  who  discovers  the 
dormant  partner  and  sues  him  with  the  other ;  unless  the  first 
attaching  creditor's  claim  has  no  reference  to  the  partnership  busi- 
ness, and  that  of  the  second  attaching  creditor  has  such  reference. 

The  partnership  creditors  are  restrained  from  appropriating  the 
private  property  of  the  copartners  until  the  claims  of  their  private 
creditors  are  satisfied  in  courts  of  equity.  And  some  recent  adju- 
dications indicate  that  the  rule  will  become  established  at  law. 

I  think  the  law  ought  to  be,  and  that  it  is  now  tending  to 
become,  this.  A  partnership  is  a  kind  of  body  by  itself,  somewhat 
like  a  corporation.  It  has  its  own  funds,  and  its  own  debts.  The 
individual  members  may  also  have  each  his  own  funds  and  his  own 
debts. 

The  funds  of  the  partnership  should  first  be  applied  to  the  debts 
of  the  partnership ;  and,  if  there  be  any  surplus,  the  members  have  it, 


228  PARTNERSHIP. 

and  then  creditors  get  it.  So  the  private  funds  of  each  member 
should  first  be  applied  exclusively  to  the  payment  of  that  person's 
private  debts ;  and,  when  they  are  wholly  paid,  the  surplus  should 
go  to  the  partnership  creditors,  because  each  partner  is  responsible 
for  the  partnership  debts.  This  rule  prevails  on  the  continent  of 
Europe  very  generally. 

It  is  now  quite  certain  that  the  levy  of  a  private  creditor  of  one 
copartner  upon  partnership  property  can  give  him  only  what  that 
copartner  has  ;  that  is,  not  a  separate  personal  possession  of  any  part 
or  share  of  the  stock  or  property,  but  an  undivided  right  or  interest 
in  the  whole,  subject  to  the  payment  of  debts  and  the  settlement  of 
accounts ;  including  also  the  right  to  demand  an  account. 

As  to  how  such  levy  and  sale  of  the  interest  of  one  copartner  shall 
be  made  by  the  sheriff,  there  is  much  diversity  both  of  practice  and 
of  authority.  Upon  principle,  we  think  the  sheriff  can  neither  seize, 
nor  transfer  by  sale,  either  the  whole  stock  or  any  specific  portion  of 
it.  He  should,  we  think,  without  any  actual  seizure,  sell  all  the 
interest  of  the  defendant  partner  in  the  stock  and  property  of  the 
partnership ;  much  in  the  same  way  in  which  he  would  sell  his  right 
to  redeem  a  mortgage,  or  any  other  incorporeal  right,  subject  to 
attachment.  The  purchaser  would  then  have  a  right  to  demand  au 
account  and  settlement,  and  a  transfer  to  himself  of  any  balance  or 
property  to  which  the  copartner  whom  he  sued  would  have  been 
entitled. 

Where'  the  trustee  process,  or  process  of  foreign  attachment,  is  in 
use,  the  better  way  would  be  for  the  sheriff  to  return  a  general  at- 
tachment of  all  the  interest  of  the  debtor  in  the  partnership  property, 
and  summon  the  other  partners  as  the  trustees  of  the  debtor. 

It  must  be  stated,  however,  that  the  rules  of  law  in  regard  to  the 
liability  of  partnership  property  for  the  private  debts  of  partners,  and 
as  to  how  any  such  liability  may  be  enforced,  are,  at  present,  some- 
what obscure  and  uncertain. 


THE  EFFECTS   OF  DISSOLUTION.  229 

SECTION  IX. 
THE    EFFECTS   OF   DISSOLUTION. 

IP  the  dissolution  is  caused  by  the  death  of  any  partner,  the  whole 
property  goes  to  the  surviving  partners.  They  hold  it,  however,  not 
as  their  own,  but  only  for  the  purpose  of  settlement;  and  therefore 
they  have,  in  relation  to  it,  all  the  power  which  is  necessary  for  that 
purpose,  and  no  more.  If  they  carry  on  the  business  with  the 
partnership  funds,  they  do  so  at  their  own  risk  ;  and  the  represen- 
tatives of  the  deceased  may  require  their  share  of  the  capital,  and 
choose  between  calling  on  them,  in  addition,  for  interest,  or  for  a 
share  of  the  profits. 

The  survivors  are  not  partners,  but  tenants  in  common  (joint 
owners)  with  the  representatives  of  the  deceased  of  the  stock  or  pro- 
perty in  possession  ;  and  have  all  necessary  rights  to  settle  the  affairs 
of  the  concern  and  pay  its  debts.  After  a  dissolution,  however 
caused,  one  who  had  been  a  partner  has  no  authority  to  make  new 
contracts  in  the  name  of  the  firm,  as  to  make  or  indorse  notes  or 
bills  with  the  name  of  the  firm,  even  if  he  be  expressly  authorized 
to  settle  the  affairs  of  the  firm.  There  must  be  a  distinct  authority 
to  sign  for  the  others  who  were  formerly  partners.  A  parol  autho- 
rity will  be  sufficient,  even  if  the  general  terms  of  the  partnership 
had  been  reduced  to  writing. 

It  is  common,  where  a  partnership  is  dissolved  by  mutual  consent, 
to  provide  that  some  one  of  the  partners  shall  settle  up  the  affairs  of 
the  concern,  collect  and  pay  debts,  and  the  like.  But  this  will  not 
prevent  any  person  from  paying  to  any  partner  a  debt  due  to  the 
firm ;  and,  if  such  payment  be  made  in  good  faith,  the  release  or 
discharge  of  the  partner  is  effectual. 

If  all  the  debts  were  assigned  and  transferred  to  any  person,  as 
his  property,  any  debtor  who  had  notice  of  this  would  be  bound  to 
make  payment  to  this  person  alone ;  and,  if  he  paid  anybody  else, 
he  would  be  obliged  to  pay  the  money  over  again. 

It  is  frequently  provided,  that  one  partner  shall  take  all  the  prop- 
erty and  pay  all  the  debts  ;  but  this  agreement,  though  valid  between 
the  partners,  has  no  effect  upon  the  rights  of  third  parties  against 


230  PAETNEESHIP. 

the  other  partners;  for  they  have  a  valid  claim  against  all  the 
partners,  of  which  they  cannot  be  divested  without  their  consent. 

This  consent  of  the  creditor  may  be  inferred,  but  not  from  slight 
evidence ;  thus,  not  from  receiving  the  single  partner's  note  as  a 
collateral  security,  nor  from  receiving  interest  from  him  on  the  joint 
debt,  nor  from  a  mere  change  in  the  head  of  the  account,  charging 
the  single  partner  and  not  the  firm.  Still,  as  the  creditor  certainly 
can  assent  to  this  arrangement,  and  accept  the  indebtedness  of  one 
partner  instead  of  that  of  the  firm,  so  it  must  be  equally  clear  that 
such  assent  and  intention  will  bind  him,  if  distinctly  proved  by 
circumstances. 


SECTION  X. 
LIMITED    PARTNERSHIPS. 

THESE  have  been  introduced  into  some  of  our  States,  by  statutes, 
which  differ  somewhat  in  their  provisions.  Generally,  they  require, 
first,  one  or  more  general  partners,  whose  names  shall  be  known ; 
secondly,  special  partners,  who  do  not  appear  as  members,  nor 
possess  the  powers  or  discharge  the  duties  of  actual  partners ; 
thirdly,  the  sum  to  be  contributed  by  the  special  partners  shall  be 
actually  paid  in;  lastly,  all  these  arrangements,  with  such  other 
information  as  may  be  needed  for  the  security  of  the  public,  must  be 
verified  under  oath,  signatures  of  all  the  parties,  and  acknowledg- 
ment before  a  magistrate,  and  correctly  published.  When  these 
requisites  are  complied  with,  the  special  partners  may  lose  all  they 
have  put  in,  but  cannot  be  held  to  any  further  responsibility.  But 
any  neglect  of  them,  or  any  material  mistake  in  regard  to  them,  even 
on  the  part  of  the  printer  of  the  advertisement,  wholly  destroys  their 
effect;  and  then  the  special  partner  is  liable  for  the  whole  debt, 
precisely  like  a  general  partner. 

In  a  New- York  case,  the  amount  contributed  by  the  special  part 
ner  was,  by  mistake  of  the  printer,  stated  at  $5,000,  instead  of 
12,000,  and  it  was  held  that  the  associates  were  liable  as  general 
partners,  although  the  plaintiff  did  not  show  that  he  was  actually 
misled  by  the  error.  In  another  New-York  case,  it  was  held  that  an 


ARTICLES   OF  COPAKTNEKSHIP.  231 

assignment  of  the  partnership  property,  providing  for  the  payment 
of  a  debt  due  to  the  special  partner,  ratably  with  the  other  creditors 
of  the  firm,  or  before  all  the  other  creditors  are  satisfied  in  full  for 
their  debts,  is  void  as  against  the  creditors ;  but  it  would  be  valid  as 
against  the  assignor  and  those  creditors  who  think  proper  to  affirm 
it. 

(83.) 
Articles  of  Copartnership  between  two  Tradesmen. 

Articles  of  Agreement,  Had,  made,  concluded,  and  agreed  upon,  this 

day  of  A.D.  between 

of  trader,  and  of  trader. 

First  of  all,  the  said  and  have 

agreed,  and  by  these  presents  do  agree,  to  become  copartners  together  in  the  art 
or  trade  of  and  all  things  thereto  belonging,  and  also,  in 

buying,  selling,  vending,  and  retailing  all  sorts  of  wares,  goods,  and  commodities 
belonging  to  the  said  trade  of  which  said  copartnership, 

it  is  agreed,  shall  continue  from  for  and  during,  and  unto 

the  full  end  and  term  of  years,  from  thence  next  ensuing,  and  fully 

to  be  complete  and  ended.     And  to  that  end  and  purpose  he  the  said 

hath  the  day  of  date  of  these  presents,  delivered  in  as  stock,  the  sum 
of  and  he  the  said  the  sum  of 

to  be  used,  laid  out,  and  employed,  in  common  trade  between  them,  for  the  manage- 
ment of  the  said  trade  of  to  their  utmost  benefit  and 
advantage.  And  it  is  hereby  agreed  between  the  said  parties,  and  the  said 
copartners,  each  for  himself  respectively,  and  for  his  own  particular  part,  and  for 
Lis  executors  and  administrators,  that  each  doth  covenant,  promise,  and  agree,  to 
and  with  the  other  of  them,  his  executors  and  administrators,  by  these  presents,  in 
manner  and  form  following  (that  is  to  say)  that  they  the  said  copartners  shall  not 
nor  will,  at  any  time  hereafter,  use,  exercise,  or  follow  the  trade  of 
aforesaid,  or  any  other  trade  whatsoever  during  the  said  term,  to  their  private 
benefit  and  advantage ;  but  shall  and  will,  from  time  to  time,  and  at  all  times, 
during  the  said  term  (if  they  shall  so  long  live),  do  their  and  each  of  their  best  and 
utmost  endeavors,  in  and  by  all  means  possible,  to  the  utmost  of  their  skill  and 
power,  for  their  joint  interest,  profit,  benefit,  and  advantage,  and  truly  employ,  buy, 
sell,  and  merchandise,  with  the  stock  aforesaid,  and  the  increase  thereof  in  the 
trade  of  aforesaid,  without  any  sinister  intentions  or 
fraudulent  endeavors  whatsoever.  And  also  that  they  the  said  copartners  shall  and 
will,  from  time  to  time,  and  at  all  times  hereafter,  during  the  said  term,  pay,  bear, 
and  discharge,  equally  between  them,  the  rent  of  the  shop,  which  they  the  said 
copartners  shall  rent  or  hire,  for  the  joint  exercising  or  managing  of  the  trade 


232  PARTNERSHIP. 

aforesaid.  And  that  all  such  gain,  profit,  and  increase,  as  shall  come,  grow,  or 
arise,  for  or  by  reason  of  the  said  trade,  or  joint  business  as  aforesaid,  shall  be  from 
time  to  time,  during  the  said  term,  equally  and  proportionably  divided  between 
them  the  said  copartners,  share  and  share  alike.  And  also  that  all  such  losses 
as  shall  happen  in  the  said  joint  trade,  by  bad  debts,  ill  commodities,  or  otherwise 
without  fraud  or  covin,  shall  be  paid  and  borne  equally  and  proportionably  between 
them.  And  further,  it  is  agreed  by  and  between  the  said  copartners,  that  there 
shall  be  had  and  kept  from  time  to  time,  and  at  all  times  during  the  said  term  and 
joint  business  and  copartnership  together  as  aforesaid,  perfect,  just,  and  true  books 
of  accounts,  wherein  each  of  the  said  copartners  shall  duly  enter  and  set  down,  as 
well  all  money  by  him  received,  paid,  expended  and  laid  out,  in  and  about  the 
management  of  the  said  trade,  as  also  all  wares,  goods,  commodities,  and  merchan- 
dises, by  them  or  either  of  them  bought  and  sold  by  reason  or  means  or  upon 
account  of  the  said  copartnership,  and  all  other  matters  and  things  whatsoever,  to 
the  said  joint  trade,  and  the  management  thereof,  in  any  wise  belonging  or  apper- 
taining, which  said  books  shall  be  used  in  common  between  the  said  copartners,  so 
that  either  of  them  may  have  free  access  thereto  without  any  interruption  of  the 
other.  And  also  that  they  the  said  copartners,  once  in  three  months,  or  oftener  if 
need  shall  require,  upon  the  reasonable  request  of  one  of  them,  shall  make,  yield, 
and  render,  each  to  the  other,  or  to  the  executors  or  administrators  of  the  other,  a 
true,  just,  and  perfect  account  of  all  profits  and  increase,  by  them  or  either  of  them 
made,  and  of  all  losses  by  them  or  either  of  them  sustained,  and  also  of  all  pay- 
ments, receipts,  and  disbursements  whatsoever,  by  them  or  either  of  them  made  or 
received,  and  of  all  other  things  by  them  or  either  of  them  acted,  done,  or  suffered 
in  the  said  copartnership  and  joint  business  as  aforesaid ;  and  the  same  account 
being  so  made,  shall  and  will  clear,  adjust,  pay,  and  deliver,  each  unto  the 
other,  at  the  time  of  making  such  account,  their  equal  shares  of  the  profits  so  made 
as  aforesaid ;  and  at  the  end  of  the  said  term  of  or  other 

sooner  determination  of  these  presents  (be  it  by  the  death  of  one  of  the  said  part- 
ners or  otherwise),  they  the  said  copartners,  each  to  the  other,  or  in  case  of  the 
death  of  either  of  them,  the  surviving  party  to  the  executors  or  administrators  of 
the  party  deceased,  shall  and  will  make  a  true,  just,  and  final  account  of  all  things 
as  aforesaid,  and  divide  the  profits  aforesaid,  and  in  all  things  well  and  truly  adjust 
the  same,  and  that  also  upon  the  making  of  such  final  account,  all  and  every  the 
stock  and  stocks,  as  well  as  the  gains  and  increase  thereof,  which  shall  appear  to 
be  remaining,  whether  consisting  of  money,  wares,  debts, 

shall  be  equally  parted  and  divided  between  them  the  said  copartners,  their  exec- 
utors, or  administrators,  share  and  share  alike. 

In  Witness  Whereof  &c. 

(Signatures.) 


AETICLES  OF  COPARTNEKSHIP.  233 

Various  Covenants  and  Clauses  which  may  be  introduced  in  Articles  of  Copart- 
nership according  to  circumstances. 

Not  to  trust  any  one  whom  the  Copartner  shall  forbid. 

And  that  neither  of  the  said  parties  shall  sell  or  credit  any  goods  or  merchan- 
dise belonging  to  the  said  joint  trade,  to  any  person  or  persons,  after  notice  in 
writing  from  the  other  of  the  said  parties,  that  such  person  or  persons  are  not  to 
be  credited  or  trusted. 

Not  to  release  any  Debt  without  Consent,  &c. 

And  that  neither  of  the  said  parties  shall,  without  the  consent  of  the  other, 
release  or  compound  any  debt  or  demand,  due  or  coming  to  them  on  account  of 
their  said  copartnership,  except  for  so  much  as  shall  actually  be  received,  and 
brought  into  the  stock  or  cash  account  of  the  said  partnership. 

Not  to  be  bound,  or  indorse  Sills,  &e.,  for  any  one  without  Consent,  «fre. 

And  that  neither  of  the  said  parties  shall,  during  this  copartnership,  without 
the  consent  of  the  other,  enter  into  any  deed,  covenant,  bond,  or  judgment,  or 
become  bound  as  bail  or  surety,  or  give  any  note,  or  accept  or  indorse  any  bill  of 
exchange  for  himself  and  partner,  without  the  consent  of  the  other  first  had  and 
obtained,  with  or  for  any  person  whatsoever. 

Neither  Party  to  assign  his  Interest,  «Cc. 

And  it  is  agreed  between  the  said  parties,  that  neither  of  the  said  parties  shall, 
without  the  consent  of  the  other,  obtained  hi  writing,  sell  or  assign  his  share  or 
interest  in  the  said  joint  trade,  to  any  person  or  persons  whatsoever. 

Principal  Clerk  to  be  Receiver  of  Moneys,  &e» 

That  the  principal  clerk  for  the  time  being  shall  be  the  general  receiver  of  all 
the  money  belonging  to  the  said  joint  trade,  and  shall  thereout  pay  all  demands 
ordered  by  the  said  parties,  and  shall  from  time  to  time  pay  the  surplus  cash  to 
such  banker  as  the  said  partners  shall  nominate. 

Parties  to  draw  quarterly,  <frc. 

That  it  shall  be  lawful  for  each  of  them  to  take  out  of  the  cash  of  the  joint 
stock  the  sum  of  quarterly,  to  his  own  use,  the  same  to  be 

charged  on  account,  and  neither  of  them  shall  take  any  further  sum  for  his  own 
separate  use,  without  the  consent  of  the  other  in  writing ;  and  any  such  further 
sum,  taken  with  such  consent,  shall  draw  interest  after  the  rate  of  per 

cent,  and  shall  be  payable  together  with  the  interest  due,  within 
days  after  notice  ir  writing  given  by  the  other  of  the  said  parties. 


234  PARTXEKSHIP. 

(84.) 
Shorter  Form  of  Articles  of  Copartnership. 

Articles  of  Agreement,  Made  the  day 

Of  one  thousand  eight  hundred  and  between 

(jffie  names  and  residence  of  the  two  parties) 

as  follows :  The  said  parties  above  named  have  agreed  to  become  copartners  in 
business,  and  by  these  presents  do  agree  to  be  copartners  together  under  and  by 
the  name  or  firm  of  in  the  buying,  selling,  and 

vending  all  sorts  of  goods,  wares,  and  merchandise  to  the  said  business  belonging, 
and  to  occupy  the  their  copartnership  to  commence 

on  the  day  of  and  to  continue 

and  to  that  end  and  purpose  the  said  (here  state  the  contributions  of  each  of  the 
parties') 

to  be  used  and  employed  in  common  between  them  for  the  support  and  manage- 
ment of  the  said  business,  to  their  mutual  benefit  and  advantage.  And  it  is 
agreed  by  and  between  the  parties  to  these  presents,  that  at  all  times  during  the 
continuance  of  then*  copartnership,  they  and  each  of  them  will  give  their  attend- 
ance, and  do  their  and  each  of  their  best  endeavors,  and  to  the  utmost  of  their 
skill  and  power  exert  themselves  for  their  joint  interest,  profit,  benefit,  and  advan- 
tage, and  truly  employ,  buy,  sell,  and  merchandise  with  their  joint  stock,  and  the 
increase  thereof,  in  the  business  aforesaid.  And  also  that  they  shall  and  will  at 
all  tunes  during  the  said  copartnership  bear,  pay,  and  discharge  equally  between 
them,  all  rents  and  other  expenses  that  may  be  required  for  the  support  and  man- 
agement of  the  said  business ;  and  that  all  gams,  profit,  and  increase  that  shall 
come,  grow,  or  arise  from  or  by  means  of  their  said  business,  shall  be  divided 
between  them  (state  whether  equally,  or  in  what  proportions)  and 

all  loss  that  shah1  happen  to  their  said  joint  business,  by  ill  commodities,  bad  debts, 
or  otherwise,  shall  be  borne  and  paid  between  them. 

And  it  is  agreed  by  and  between  the  said  parties,  that  there  shall  be  had  and 
kept  at  all  times  during  the  continuance  of  their  copartnership,  perfect,  just,  and 
true  books  of  account,  wherein  each  of  the  said  copartners  shall  enter  and  set 
down,  as  well  all  money  by  them  or  either  of  them  received,  paid,  laid  out,  and 
expended  hi  and  about  the  said  business,  as  also  all  goods,  wares,  commodities, 
and  merchandise,  by  them  or  either  of  them,  bought  or  sold  by  reason  or  on 
account  of  the  said  business,  and  all  other  matters  and  things  whatsoever  to  the 
said  business  and  the  management  thereof  in  any  wise  belonging;  which  said 
books  shall  be  used  in  common  between  the  said  copartners,  so  that  either  of  them 
may  have  access  thereto,  without  any  interruption  or  hindrance  of  the  other.  And 
also  the  said  co-partners,  once  hi 

or  oftener  if  necessary,  shall  make,  yield,  and  render,  each  to  the  other,  a  true, 
just,  and  perfect  inventory  and  account  of  all  profits  and  increase  by  them,  or 
either  of  them,  made,  and  of  all  losses  by  them,  or  either  of  them,  sustained ;  and 


ARTICLES   OF  COPARTNERSHIP.  23u 

also  all  payments,  receipts,  disbursements,  and  all  other  things  by  them  made, 
received,  disbursed,  acted,  done,  or  suffered  in  this  said  copartnership  and  business, 
and  the  same  account  so  made  shall  and  will  clear,  adjust,  pay,  and  deliver,  each 
to  the  other,  at  the  time,  their  just  share  of  the  profits  so  made  as  aforesaid. 

And  the  said  parties  hereby  mutually  covenant  and  agree  to  and  with  each 
other,  that,  during  the  continuance  of  the  said  copartnership,  neither  of  them  shall 
nor  will  indorse  any  note,  or  otherwise  become  surety  for  any  person  or  persons 
whomsoever,  without  the  consent  of  the  other  of  the  said  copai  tners.  And  at  the 
end,  or  other  sooner  determination  of  their  copartnership,  the  said  copartners, 
each  to  the  other,  shall  and  will  make  a  true,  just,  and  final  account  of  all  things 
relating  to  their  said  business,  and  in  all  things  truly  adjust  the  same ;  and  all  and 
every  the  stock  and  stocks,  as  well  as  the  gains  and  increase  thereof,  which  shall 
appear  to  be  remaining,  either  in  money,  goods,  wares,  fixtures,  debts,  or  otherwise, 
shall  be  divided  between  them. 

In  Witness  Whereof, 

(Signatures.) 

(85.) 

Certificate  of   a    Limited    Partnership,   with    Acknowledgment 

and  Oath. 

This  is  to  Certify,  That  the  undersigned  have,  pursuant  to  the  provisions 
of  the  Statutes  of  the  State  of  formed  a  limited  partnership,  under 

the  name  or  firm  of  •  that  the  general  nature  of  the 

business  to  be  transacted  is  (describe  ike  business)  and  that 

the  general  partner    and 

is  the  special  partner    and  that  the  said  (the  special  partner)  hath 
contributed  the  sum  of  dollars,  as  capital 

towards  the  common  stock,  and  that  the  said  partnership  is  to  commence  on 
the  day  of  and  is  to  terminate  on  the 

day  of  18 

Dated  this  day  of  one  thousand  eight  hundred 

and 

(Signatures.) 

County  of  83.     On  the  day  of 

one  thousand  eight  hundred  and  before  me  came 

to  be  the  individuals  described  in,  and  who  executed  the  above  certificate,  and 
they  severally  acknowledged  that  they  executed  the  same. 

County  of  ss. 

the  general  partner  named  in  the  above  certificate,  being  duly  sworn,  doth  depose, 
and  say,  that  the  sum  specified  in  the  said  certificate  to  have  been  contributed  by 
the  special  partner  to  the  common  stock  has  been  actually  and  in  good  faith  paid 
in  cash. 

Sworn  this  day  of  18        before  me, 

17 


236  AKBITKATION. 

In  some  of  the  States,  the  oath  should  be  made  by  the  general 
partner ;  and  it  would  always  be  safe  for  all  the  partners,  general 
and  special,  to  take  the  oath,  and  be  included  in  the  certificate. 


CHAPTER    XIX. 


SECTION  L 
OP    THE    SUBMISSION    AND    AWARD. 

[By  the  Submission  (or  reference)  is  meant  the  submission  of  the  Question  or  questions 
to  arbitrators.] 

THE  law  favors  arbitration  in  many  respects  as  a  peaceable  and 
inexpensive  mode  of  settling  difficulties.  Parties  may  agree  to  refer 
a  question  by  an  oral  agreement,  or  by  a  written  agreement.  The 
form  is  not  essential.  But  it  is  always  best  to  reduce  the  agreement 
to  writing,  and  to  express  it  carefully.  But  parties  may,  in  many 
of  our  States,  go  before  a  magistrate  and  agree  to  refer  in  the  man- 
ner pointed  out  by  the  statute.  In  all  of  them  a  case  may  be  taken 
out  of  court  and  submitted  to  referees  under  an  order  of  court. 

The  first  essential  of  an  award,  without  which  it  has  no  force 
whatever,  is,  that  it  be  conformable  to  the  terms  of  the  submission. 
The  authority  given  to  the  arbitrators  should  not  be  exceeded ; 
and  the  precise  question  submitted  to  them,  and  neither  more  nor 
less,  should  be  answered.  Neither  can  the  award  affect  strangers 
(or  those  who  are  not  parties  to  it)  ;  and,  if  one  part  of  it  is  that  a 
stranger  shall  do  some  act,  it  is  not  only  of  no  force  as  to  the  stran- 
ger, but  of  no  force  as  lo  me  parties  if  this  unauthorized  part  cf 
the  award  cannot  be  taken  away  without  affecting  the  rest  of  the 
award. 


SUBMISSION  AND  AWARD.  .  237 

Nor  can  it  require  that  one  of  the  parties  should  make  a  payment, 
or  do  any  similar  act,  to  a  stranger.  But  if  the  stranger  is  men- 
tioned in  an  award  only  as  agent  of  one  of  the  parties,  which  he 
actually  is,  or  as  trustee,  or  as  in  any  way  paying  for,  or  receiving 
for,  one  of  the  parties,  this  does  not  invalidate  the  award.  And  in 
favor  of  awards,  it  has  been  said  that  this  will  be  supposed,  where 
the  contrary  is  not  indicated. 

If  the  award  embrace  matters  not  included  in  the  submission,  it 
is  fatal.  If,  however,  the  portion  of  the  award  which  exceeds  the 
submission  can  be  separated  from  the  rest  without  affecting  the 
merits  of  the  award,  it  may  be  rejected,  and  the  rest  will  stand ; 
otherwise  the  whole  is  void.  If  the  submission  specify  the  particu- 
lars to  which  it  refers,  or  if,  after  general  words,  it  make  specific 
exceptions,  its  words  must  be  strictly  followed. 

If  these  words  are  very  general,  they  will  be  construed  liberally, 
but  yet  without  extending  them  beyond  their  fair  meaning.  On  the 
other  hand,  all  questions  submitted  must  be  decided,  unless  the  sub- 
mission provides  otherwise ;  and  either  party  may  object  to  an 
award,  that  it  omits  the  decision  of  some  question  submitted  ;  but 
the  objection  is  invalid  if  it  be  shown  that  the  party  objecting  him- 
self withheld  that  question  from  the  arbitrators.  Nor  is  it  necessary 
that  the  award  embrace  all  the  topics  which  might  be  considered 
within  the  terms  of  a  general  submission.  It  is  enough  if  it  pass 
upon  those  questions  brought  before  the  arbitrators,  and  they  are  so 
far  distinct  and  independent  that  the  omission  of  others  leaves  no 
uncertainty  in  the  award.  If  the  award  does  not  embrace  all  of  the 
matters  within  the  submission  which  where  brought  to  the  notice  of 
the  arbitrators,  it  is  altogether  void. 

In  the  next  place,  an  award  must  be  certain  ;  that  is,  it  must  be 
sc  expressed  that  no  reasonable  doubt  can  be  entertained  as  to  the 
meaning  of  the  arbitrators,  the  effect  of  the  award,  or  the  rights  and 
duties  of  the  parties  under  it.  For  the  very  purpose  of  the  submis- 
sion, and  the  end  for  which  the  law  favors  arbitration,  is  the  final 
settlement  of  all  questions  and  disputes;  and  this  is  inconsistent 
with  uncertainty. 

In  the  next  place,  the  award  must  be  possible ;  for  an  award  re- 
quiring that  to  be  done  which  cannot  be  done  is  senseless  and  use- 


238  ARBITRATION. 

less.  But  the  impossibility  which  vitiates  an  award  is  one  which 
belongs  to  the  nature  of  the  thing,  and  not  to  the  accidental  dis- 
ability of  the  party  at  the  time.  Thus,  if  he  be  ordered  to  pay 
money  on  a  day  that  is  past,  this  is  void  ;  so  if  he  be  required  to 
give  up  a  deed  which  he  neither  has  nor  may  expect  to  have  ;  but 
if  he  be  directed  to  pay  money,  the  award  is  good,  although  he  has 
no  money,  for  it  creates  a  valid  debt  against  him.  Nor  can  a  party 
avoid  an  award  on  the  ground  of  an  impossibility  created  by  him- 
self, after  the  award,  or  indeed  beforehand,  if  he  created  it  for  the 
purpose  of  evading  an  expected  award. 

This  impossibility  may  be  actual,  or  it  may  be  that  created  by 
law  ;  for  an  award  which  requires  that  a  party  should  do  what  the 
law  forbids  him  to  do  is  void,  either  in  the  whole,  or  else  for  so 
much  as  is  thus  against  the  law,  if  that  illegal  part  can  be  severed 
from  the  rest. 

An  award  must  be  reasonable  ;  if  it  be  of  things  in  themselves  of 
no  value  or  advantage  to  the  parties,  or  out  of  all  proportion  to  the 
justice  and  requirements  of  the  case,  or  if  it  undertake  to  determine 
for  the  parties  what  they  should  determine  for  themselves,  as  that 
the  parties  should  intermarry,  it  is  void. 

Lastly,  the  award  must  be  final  and  conclusive.  This  necessity 
springs  also  from  the  very  purpose  for  which  the  law  favors  arbitra- 
tion, namely,  the  settlement  and  closing  of  disputes.  It  is  not  a  valid 
objection  to  an  award,  that  it  is  upon  a  condition,  if  the  condition 
be  clear  and  certain,  consistent  with  the  rest  of  the  award,  in  itself 
reasonable,  and  such  that  there  could  be  no  doubt  whether  it  were 
performed  or  not,  or  what  were  the  rights  or  obligations  dependent 
upon  it. 

An  award  may  be  open  to  any  or  all  of  these  objections  in  part, 
without  being  necessarily  void  in  the  whole.  So  much  of  it  as  is 
thus  faulty  is  void ;  but  if  this  can  be  severed  distinctly  from  the 
residue,  leaving  a  substantial,  definite,  and  unobjectionable  award 
behind,  this  may  be  done,  and  the  award  then  will  take  effect.  It 
is  therefore  void  in  the  whole  because  bad  in  part,  only  where  this 
part  cannot  be  severed  from  the  residue  ;  or  where,  if  it  be  severed 
and  amended,  leaving  the  residue  in  force,  one  of  the  parties  will 
be  held  to  an  obligation  imposed  upon  him,  but  deprived  of  the  ad 


SUBMISSION  AND  AWAKD.  239 

vantage  or  recompense  which  it  was  intended  that  he  should  have. 
Generally,  in  the  construction  of  awards,  they  are  favored  and 
enforced,  wherever  this  can  properly  be  done. 

If  the  submission  be  in  the  most  general  terms,  and  the  award 
equally  so,  covering  "  all  demands  and  questions  "  between  the  par- 
ties, either  party  may  still  show  that  a  particular  demand  either  did 
not  exist,  or  was  not  known  to  exist,  when  the  submission  was 
entered  into,  or  that  it  was  not  brought  before  the  notice  of  the  arbi- 
trators, or  considered  by  them ;  and  then  the  award  will  not  be 
permitted  to  affect  this  demand. 

If,  by  an  award,  money  is  to  be  paid  in  satisfaction  of  a  debt,  this 
implies  an  award  of  a  release  on  the  other  side,  and  makes  this 
release  a  condition  to  the  payment. 

There  is  no  especial  form  of  an  award  necessary  in  this  country. 
If  the  submission  requires  that  it  should  be  sealed,  it  must  be  so. 
And  if  the  submission  was  made  under  a  statute,  or  under  a  rule  of 
court,  the  requirements  of  the  statute  or  the  rule  should  be  followed. 
But  even  here  mere  formal  inaccuracies  would  seldom  be  permitted 
to  vitiate  the  reward. 

If  the  submission  contains  other  directions  or  conditions,  as  that  it 
should  be  delivered  to  the  parties  in  writing,  or  to  each  of  the 
parties,  such  directions  must  be  substantially  followed.  Thus,  in 
the  latter  case,  it  has  been  held  that  it  is  not  enough  that  a  copy  be 
delivered  to  one  of  the  parties  on  each  side,  but  each  individual 
party  must  have  one. 

It  may  happen,  where  an  award  is  offered  in  defence,  or  as  the 
ground  of  an  action,  that  it  is  open  to  no  objection  whatever  for 
any  thing  which  it  contains  or  which  it  omits  ;  and  yet  it  may  be  set 
aside  for  impropriety  or  irregularity  in  the  conduct  of  the  arbitrat- 
ors, or  in  the  proceedings  before  them.  Awards  are  thus  set  aside 
if  "  procured  by  corruption  or  undue  means."  This  rule  rests, 
indeed,  on  the  common  principle,  that  fraud  vitiates  and  avoids 
every  transaction. 

So,  too,  it  may  well  be  set  aside  if  it  be  apparent  on  its  face  that 
the  arbitrator  has  made  a  material  mistake  of  fact  or  of  law.  It 
must,  however,  be  rather  a  strong  case  in  which  the  court  would 
receive  evidence  of  a  mere  mistake,  either  in  fact  or  in  law,  which 


040  ARBITRATION. 

did  not  appear  in  the  award,  and  was  not  supposed  to  spring  from 
or  indicate  corruption. 

Another  instance  of  irregularity  is  the  omission  to  examine 
witnesses  ;  or  an  examination  of  them  when  the  parties  were  not 
present,  and  their  absence  was  for  good  cause  ;  or  a  concealment  by 
either  of  the  parties  of  material  circumstances  ;  for  this  would  bo 
fraud.  So  if  the  arbitrators,  in  case  of  disagreement,  were  author- 
ized to  choose  an  umpire,  but  drew  lots  which  of  them  should  choose 
him.  But  it  has  been  held  enough  that  each  arbitrator  named  an 
umpire,  and  lots  were  drawn  to  decide  which  of  these  two  should  be 
taken,  because  it  might  be  considered  that  both  of  these  men  were 
agreed  upon.  And  if  an  umpire  be  appointed  by  lot,  or  otherwise 
irregularly,  if  the  parties  agree  to  the  appointment,  and  confirm  it 
expressly,  or  impliedly  by  attending  before  him,  with  a  full 
knowledge  of  the  manner  of  the  appointment,  this  covers  the  irreg- 
ularity. 


SECTION   H. 
THE    REVOCATION   OF    A    SUBMISSION   TO   ARBITRATORS. 

IT  is  an  ancient  and  well-established  rule,  that  either  party  may 
revoke  his  submission  at  any  time  before  the  award  is  made ;  and  by 
this  revocation  render  the  submission  wholly  ineffectual,  and  of 
course  take  from  the  arbitrators  all  power  of  making  a  binding 
award.  And,  generally,  this  power  exists  until  the  award  is  made. 

In  this  country,  our  courts  have  always  excepted  from  this  rule 
submissions  made  by  order  or  rule  of  court ;  for  a  kind  of  jurisdic- 
tion is  held  to  attach  to  the  arbitrators,  and  the  submission  is  quite 
irrevocable,  except  for  sucli  causes  as  make  it  necessarily  inoperative. 

There  is  a  strong  reason  why  a  submission  by  order  of  court,  or 
before  a  magistrate,  should  be  preferred  where  it  can  be  had,  from  the 
fact  above  stated,  that  the  law  permits  any  party  who  finds  an  award 
is  going  against  him  to  revoke  his  submission  or  reference  when  he- 
will,  before  the  award  is  made  ;  provided  the  award  was  only  by 
agreement  out  of  court,  or  not  before  a  magistrate.  In  some  of  oui 


REVOCATION  OF  A  SUBMISSION  TO  ARBITRATION.          241 

States,  the  statutes  authorizing  and  regulating  arbitration  provide 
for  the  revocation  of  the  submission. 

It  should  be  stated,  however,  that,  as  an  agreement  to  submit  is  a 
valid  contract,  the  promise  of  each  party  being  the  consideration  for 
the  promise  of  the  other,  a  revocation  of  the  agreement  or  of  the 
submission  is  a  breach  of  the  contract,  and  the  other  party  has  his 
damages.  And  damages  would  generally  include  all  the  expenses 
the  plaintiff  has  incurred  about  the  submission,  and  all  that  he  has 
lost  by  the  revocation,  in  any  way. 

If  either  party  exercise  this  power  of  revocation,  he  must  give 
notice  in  some  way,  directly  or  indirectly,  to  the  other  party  ;  and 
until  such  notice,  the  revocation  is  inoperative. 

Bankruptcy  or  insolvency  of  either  or  both  parties  does  not  neces- 
sarily operate  as  a  revocation,  unless  the  terms  of  the  agreement  to 
refer,  or  the  provisions  of  the  insolvent  law,  required  it.  But  the 
assignees  acquire  whatever  power  of  revocation  the  bankrupt  or 
insolvent  possessed,  and,  generally,  at  least,  no  further  power. 

The  death  of  either  party  before  the  award  is  made  vacates  the 
submission,  if  made  out  of  court,  unless  that  provides  in  terms  for 
the  continuance  and  procedure  of  the  arbitration,  if  such  an  event 
occur.  But  a  submission  under  a  rule  of  court  is  not  revoked  or 
annulled  even  by  the  death  of  a  party.  So  the  death  or  refusal  or 
inability  of  an  arbitrator  to  act  would  annul  a  submission  out  of 
court,  unless  provided  for  in  the  agreement ;  but  not  one  under  a 
rule  of  court,  unless  for  especial  reasons,  satisfactory  to  the  court, 
which  would  make  an  appointment  of  a  substitute,  if  it  saw  fit  to 
continue  the  reference. 

It  may  be  well  to  add,  that,  after  an  award  is  fully  made,  neither 
of  the  parties  without  the  consent  of  the  other,  nor  either  nor  all  of 
the  arbitrators  without  the  consent  of  all  the  parties,  have  any 
further  control  over  it. 

If  the  submission  provides  for  any  method  of  delivering  the  award, 
this  should  be  followed.  If  not,  it  is  common  for  the  referees  to 
deliver  the  award  to  the  prevailing  party  or  his  attorney,  on  pay- 
ment by  him  of  the  fees  of  arbitration.  Then  the  prevailing  party 
looks  to  the  losing  party,  for  the  whole,  or  a  part,  or  none  of  the 
costs,  as  the  award  may  determine. 


242  ARBITRATION. 

The  award  should  be  sealed,  and  addressed  to  all  the  parties  ;  and 
it  should  not  be  opened  except  in  presence  of  all  the  parties,  or  of 
their  attorneys,  or  with  the  consent  of  those  absent  indorsed  on  the 
award.  If  the  submission  is  under  a  rule  of  court,  it  should  be 
returned  to  court  by  the  arbitrators,  or  the  counsel  receiving  it, 
sealed,  and  opened  only  in  court,  or  before  the  clerk,  or  with  the 
written  consent  of  parties. 

The  submission,  or  agreement  to  refer,  may  be  made  by  exchange 
of  Bonds,  each  party  executing  and  delivering  a  Bond  to  the  other 
party. 

This  would  be  a  formal  proceeding.  But,  as  has  been  already 
said,  no  especial  form  is  necessary ;  and  often  a  very  simple  one, 
like  that  below,  would  suffice. 

(86.) 
Simple  Agreement  to  liefer. 

Know  all  Men,  That  we,  of 

and  of  do  hereby  promise  and  agree,  to  and 

•with  each  other,  to  submit,  and  do  hereby  submit,  all  questions  and  claims  between 
us  (or  any  specific  question  or  claim,  describing  it)  to  the  arbitrament  and  deter- 
mination of  (here  name  the  arbitrators)  whose  decision  and  award  shall  be  final, 
binding,  and  conclusive  on  us ;  (add  if  there  are  more  arbitrators  than  one,  and  it  is 
intended  that  they  may  choose  an  umpire)  and,  in  case  of  disagreement  between  the 
said  arbitrators,  they  may  choose  an  umpire,  whose  award  shall  be  final  and  con- 
clusive ;  (or  add,  if  there  be  more  than  two  arbitrators)  and,  in  case  of  disagree- 
ment, the  decision  and  award  of  a  majority  of  said  arbitrators  shall  be  final  and 
conclusive. 

In  Witness  Wliereofj 

(Signatures.) 

(87.) 
Arbitration  Bond.    One  or  more  Arbitrators. 

Know  all  Men  by  these  Presents,  That  I,  (one  of  the  parties) 

am  held  and  firmly  bound  unto  (the  other  party)  \n  the  sum  of 

dollars,  lawful  money  of  the  United  States  of  America,  to  be  paid  to 
the  said  (the  other  party)  executors,  administrators,  or  assigns ;  for  whidt 

payment,  well  and  truly  to  be  made,  I  hereby  bind  myself,  my  heirs,  executors 
and  administrators,  firmly  by  these  presence 


FOEMS  IN  AEBITKATION.  243 

Sealed  with  my  seal        Dated  the  day  of  one 

thousand  eight  hundred  and 

The  Condition  of  the  above  Obligation  is  such,  Ihat  if  the  above 
bounden  shall  well  and  truly  submit  to  the 

decision  of  (the  referee)  named,  selected,  and  chosen  arbitrator    as 

well  by  and  on  the  part  and  behalf  of,  the  said  as  of 

the  said  between  whom  a  controversy  exists,  to  hear  all 

the  proofs  and  allegations  of  the  parties  of  and  concerning 
(here  set  forth  the  claims  or  questions  referred) 

and  all  matters  relating  thereto,  and  that  the  award  of  the  said  arbitrator  be  made 
in  writing,  subscribed  by  him  (or  them)  and  attested  by  a  subscribing  witness, 
ready  to  be  delivered  to  the  said  parties  on  or  before  the  day 

of  next.     But  before  proceeding  to  take  any  testimony  therein, 

the  arbitrator  shall  be  sworn,  "  faithfully  and  fairly  to  hear  and  examine  the 
matters  in  controversy  between  the  parties  to  these  presents,  and  to  make  a  just 
award  according  to  the  best  of  his  (or  their)  understanding."  And  the  said  parties 
to  these  presents  do  hereby  agree,  that  judgment  in  the  case  (in  question) 

shall  be  rendered  upon  the  award  which  may  be  made  pursuant  to 
this  submission,  to  the  end  that  all  matters  in  controversy  in  that  behalf,  between 
them,  shall  be  finally  concluded.  Then  the  above  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  Presence  of 

[To  make  the  contract  complete,  the  other  party  should  execute  and  deliver  a 
counterpart  to  this  Bond.] 

(88.) 
Award  of  Arbitrators. 

To  all  to  whom  these  Presents  shall  Come,  We  (names  of  the 
arbitrators)  to  whom  was  submitted  as  arbitrators  the  matters  in  controversy  exist- 
ing between  as  by  the  condition  of  their  respective  bonds  of  sub- 
mission, executed  by  the  said  parties  respectively,  each  unto  the  other,  and  bearing 
date  the  day  of  one  thousand  eight  hundred  and 
more  fully  appears. 

Now,  therefore,  know  ye,  That  we  the  arbitrators  men- 

tioned in  the  said  bonds  having  been  first  duly  sworn  according  to  law,  and  having 
heard  the  proofs  and  allegations  of  the  parties,  and  examined  the  matters  in  con- 
troversy by  them  submitted,  do  make  this  award  in  writing ;  that  is  to  say,  the 
said  (here  follows  the  award) 

In  "Witness  Whereof,  have  hereunto  subscribed  these  presents* 

this  day  of  one  thousand  eight  hundred  and 

(Signatures.) 

In  the  Presence  of 


244  THE   CARRIAGE  OF  GOODS  AND  PASSENGERS. 

CHAPTER    XX. 

THE    C.AJIIII^GE    OF    GOCXDS    A2fX>    PASSENGERS. 


SECTION  I. 
A  PRIVATE   CARRIER. 

ONE  who  carries  goods  for  another  is  either  a  private  carrier  or  a 
common  carrier. 

A  private  carrier  is  one  who  carries  for  others  once,  or  some- 
times, but  who  does  not  pursue  the  business  of  carrying  as  his 
usual  and  professed  occupation.  The  contract  between  him  and  the 
owner  of  the  goods  which  he  carries  is  one  of  service,  and  is 
governed  by  the  ordinary  rules  of  law.  Each  party  is  bound  to 
perform  his  share  of  the  contract.  Such  a  carrier  must  receive, 
care  for,  carry,  and  deliver  the  goods,  in  such  wise  as  he  bargains 
to  do. 

If  he  carries  the  goods  for  hire,  whether  actually  paid  or  due,  he 
is  bound  to  use  ordinary  diligence  and  care  ;  by  which  the  law 
means  such  care  as  a  man  of  ordinary  capacity  would  take  of  his 
own  property  under  similar  circumstances.  If  any  loss  or  injury 
occur  to  the  goods  while  in  his  charge,  from  the  want  of  such  care 
or  diligence  on  his  part,  he  is  responsible.  But  if  the  loss  be 
chargeable  as  much  to  the  fault  of  the  owner  as  of  the  carrier,  he 
is  not  liable.  The  owner  must  show  the  want  of  care  or  diligence 
on  the  part  of  the  private  carrier,  to  make  him  liable  ;  but  slight 
evidence  tending  that  way  would  suffice  to  throw  upon  him  the 
burden  of  accounting  satisfactorily  for  the  loss.  And  if  there  is 
such  negligence  on  the  part  of  the  carrier,  or  of  a  servant  for  whom 
he  is  responsible,  the  carrier  is  liable,  although  the  loss  be  caused 
primarily  by  a  defect  in  the  thing  carried. 

If  he  carries  the  goods  without  any  compensation,  paid  or  prom- 
ised, he  is,  in  the  language  of  the  law,  a  gratuitous  bailee,  or  man- 
datary :  he  is  now  bound  only  to  slight  care  ;  which  is  such  care  as 


THE   COMMON   CARRIER.  245 

every  person,  not  insane  or  fatuous,  would  take  of  his  own  property. 
For  the  want  of  this  care,  which  would  be  gross  negligence,  he  is 
responsible,  but  not  for  ordinary  negligence. 

We  sum  up  what  may  be  said  of  the  private  carrier  in  the 
remark,  that  the  general  rules  which  regulate  contracts  and  mutual 
obligations  apply  to  the  duties  and  the  rights  of  a  private  carrier, 
with  little  or  no  qualification.  But  it  is  otherwise  with  a  common 
carrier. 


SECTION  H. 

THE  COMMON  CARRIER. 

THE  law  in  relation  to  the  rights,  the  duties,  and  the  responsibili- 
ties of  a  common  carrier  is  quite  peculiar.  The  reasons  for  it  are 
discernible,  but  it  rests  mainly  upon  established  usage  and  custom. 
And,  as  these  usages  have  changed  considerably  in  modern  times, 
this  law  has  undergone  important  modifications. 

He  is  a  common  carrier  "  who  undertakes,  for  hire,  to  transport 
the  goods  of  such  as  choose  to  employ  him  from  some  known  and 
definite  place  or  places  to  other  known  and  definite  place  or  places." 
He  is  one  who  undertakes  the  carriage  of  goods  as  a  business;  and 
it  is  mainly  this  which  distinguishes  him  from  the  private  carrier. 

The  rights  and  responsibilities  of  the  common  carrier  may  be 
briefly  stated  thus :  He  is  bound  to  take  the  goods  of  all  who 
offer,  if  he  be  a  carrier  of  goods,  and  the  persons  of  all  who  offer, 
if  he  be  a  carrier  of  passengers ;  and  to  take  due  care  and  make 
due  transport  and  delivery  of  them.  He  has  a  lien  on  the  goods 
which  he  carries,  and  on  the  baggage  of  passengers,  for  his  compen- 
sation. He  is  liable  for  all  loss  or  injury  to  the  goods  under  his 
charge,  although  wholly  free  from  negligence,  unless  the  loss 
happens  from  the  act  of  God,  or  from  the  public,  enemy.  Those 
three  rules  will  be  considered  in  the  next  section. 

The  important  thing  to  be  remembered  is,  that  a  private  carrier 
is  not  liable  for  injury  to  persons,  or  loss  of  or  injury  to  goods,  with 
out  fault  or  negligence  on  his  part ;  but  a  common  carrier  ir>  liable, 
without  any  fault  or  negligence  on  his  part. 


246      THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

Truckmen  or  draymen,  porters,  and  others  who  undertake  the 
carriage  of  goods  for  all  applicants  from  one  city  or  town  to  another, 
or  from  one  part  of  a  city  to  another,  are  chargeable  as  common 
carriers.  So,  proprietors  of  stage-coaches  are  chargeable  as  com- 
mon carriers  of  passengers,  and  of  the  baggage  of  passengers ;  or 
the  baggage  of  others,  if  they  so  advertise  themselves.  So  are 
liackney-coachmen  within  their  accustomed  range. 

If  drivers  of  stages,  or  omnibuses,  commonly  carry  and  receive 
pay  for  goods  or  parcels  which  are  not  the  baggage  of  passengers, 
and  are  held  out  or  advertised,  or  generally  known,  as  so  carrying 
them,  they  are  common  carriers  of  goods,  and  the  proprietors  are 
liable  for  the  loss  of  such  parcels,  although  neither  they  nor  the 
drivers  were  in  fault.  But  if  there  is  no  such  habit  or  usage,  and 
the  driver  receives  such  a  parcel  to  be  carried  somewhere,  and  is 
paid  for  it,  the  driver  carries  it  as  a  private  carrier,  and  not  as  a 
common  carrier,  and  is  chargeable  only  for  negligence  or  fault.  And 
if  the  line  of  carriages  is  established  for  passengers,  and  the  driver 
does  not  account  for  what  is  paid  him  for  occasional  parcels,  but 
takes  it  as  his  own  perquisite,  the  proprietors  are  not  answer.ible 
even  for  the  driver's  fault  or  negligence,  unless  circumstances  in 
some  way  bring  the  fault  home  to  them. 

In  this  country,  in  recent  times,  the  business  of  carrying  goods 
and  passengers  is  almost  monopolized  by  what  are  called  express- 
men, by  railroads,  or  by  lines  of  steam-packets  along  our  coasts,  or 
upon  our  navigable  streams  or  lakes.  All  these  are  undoubtedly 
common  carriers ;  and  although  their  peculiar  method  of  carrying 
on  this  business  is  new,  and  will  require  from  us  especial  consider- 
ation in  another  chapter,  there  can  be  no  doubt  of  their  being,  to 
all  intents  and  purposes,  common  carriers. 

Ordinary  sailing-vessels  are  sometimes  said  to  be  common  carriers. 
We  should  be  disposed  to  restrict  this  term,  however,  to  regular 
packets ;  or,  at  most,  to  call  by  this  name  general  freighting  ships. 
It  is  not,  however,  necessary  to  consider  this  question,  as  water- 
borne  goods  are  now  almost  always  carried  under  bills  of  lading, 
which  determine  the  relations  and  respective  rights  of  the  parties ; 
and  these  we  shall  consider  in  our  chapter  on  the  Law  of  Shipping. 

The  boatmen  on  our  rivers  and  canals  are  common  carriers  ;  and 


THE  COMMON  CAEEIEB.  2-17 

ferrymen  are  common  carriers  of  passengers  by  their  office,  and  may 
become  common  carriers  of  goods  by  taking  up  that  business.  A 
steamboat  usually  employed  as  a  carrier  may  do  something  else,  as 
tow  a  vessel  out  of  a  harbor,  or  the  like  ;  and  the  character  of  com- 
mon carrier  does  not  attach  to  this  especial  employment,  and  carry 
with  it  its  severe  liabilities.  Therefore,  for  a  loss  occurring  to  a 
ship  in  her  charge  while  so  employed,  the  owner  of  the  steamer  is 
not  liable  without  negligence  on  his  part,  or  on  the  part  of  those 
whom  he  employs. 

The  same  person  may  be  a  common  carrier,  and  also  hold  other 
offices  or  relations.  He  may  be  a  warehouseman,  a  wharfinger,  or  a 
forwarding  merchant.  The  peculiar  liabilities  of  the  common 
carrier  do  not  attach  to  either  of  these  offices  or  employments. 
Thus,  a  warehouseman  is  liable  for  loss  of  the  goods  which  he  takes 
for  storage,  only  in  case  of  his  own  negligence :  he  is  not,  as  a  corn- 
corn  carrier  is  said  to  be,  an  insurer  of  the  goods.  The  question 
then  arises,  when  the  liability  of  such  a  person  is  that  of  a  ware- 
houseman, and  when  it  is  that  of  a  carrier. 

If  a  carrier  receives  goods  to  be  stored  until  he  can  carry  them, 
—  a  canal-boatman,  for  example,  —  or  if,  at  the  end  of  the  journey, 
he  stores  them  for  a  time  for  the  safety  of  the  goods  or  the  con- 
venience of  the  owner,  while  thus  stored  he  is  liable  only  as  ware- 
houseman. But  if  he  puts  them  into  his  store  or  office  only  for  a 
short  time,  and  for  his  own  convenience,  either  at  the  beginning  or 
end  of  the  transit  (or  journey),  they  are  in  his  hands  as  carrier. 

Where  these  relations  seem  to  unite  and  mingle  in  one  person,  it 
may  be  said  to  be  the  general  rule,  that,  wherever  the  deposit,  in 
whatever  place  or  building,  is  secondary  and  subordinate  to  the 
carriage  of  the  goods,  which  is  therefore  the  chief  thing,  the  party 
taking  the  goods  is  a  carrier ;  and  otherwise  a  depositary  only  of 
some  kind.  If,  therefore,  goods  are  delivered  to  a  carrier,  or  at  his 
depot  or  receiving-room,  with  directions  not  to  carry  them  until 
further  orders,  he  is  only  a  depositary,  and  not  a  carrier,  until  those 
orders  are  received  ;  but  when  they  are  received,  he  becomes  a 
carrier ;  and  if  the  goods  are  afterwards  lost  or  injured  before  their 
removal,  he  is  liable  as  a  common  carrier  without  negligence  or 
fault  on  his  part. 


248  THE  CARRIAGE  OF  GOODS  AND   PASSENGERS. 


SECTION  HI. 

THE  OBLIGATION  OF  THE  COMMON  CARRIER  TO  RECEIVE  AND  CARRY 
GOODS    OR    PASSENGERS. 

HE  cannot  refuse  to  receive  and  carry  goods  offered,  without  good 
cause  ;  for,  by  his  openly  announcing  himself  in  any  way  as  engaged 
in  this  business,  he  makes  an  offer  to  the  public  which  becomes  a 
kind  of  contract  as  to  any  one  who  accepts  it.  He  may  demand  his 
compensation,  however  ;  and,  if  it  be  refused,  he  may  refuse  to  carry 
the  goods  ;  nor  is  he  bound  to  carry  them  if  security  be  offered  to 
him,  but  not  the  money.  But  if  the  freight-money  be  not  demanded, 
the  owner  of  the  goods,  if  he  is  able,  ready,  and  willing  to  pay  it, 
has  all  his  rights  although  he  does  not  make  a  formal  tender  of  the 
money.  A  carrier  may  refuse  if  his  means  of  carriage  are  already 
fully  employed.  But,  in  a  case  where  a  railway  company,  being 
common  carriers,  had  issued  excursion-tickets  for  a  journey,  it  was 
held  that  they  were  not  excused  from  carrying  passengers  according 
to  their  contract,  upon  the  ground  that  there  was  no  room  for  them 
in  their  conveyance ;  and  that,  in  order  to  avail  themselves  of  this 
answer,  they  should  make  their  contract  conditional  upon  there 
being  room.  If  the  common  carrier  cannot  carry  the  goods  without 
danger  to  them,  or  to  himself  or  other  goods  ;  or  without  extraor- 
dinary inconvenience ;  or  if  they  are  not  such  goods  as  it  is  his 
regular  business  to  carry ;  he  is  excused  for  not  carrying  them.  He 
is  always  entitled  to  his  usual  charge ;  but  not  to  extraordinary 
compensation,  unless  for  extraordinary  service. 

The  common  carrier  of  goods  is  bound  to  receive  them  in  a 
suitable  way,  and  at  suitable  times  and  places.  If  he  has  an  office 
or  station,  he  must  have  proper  persons  there,  and  proper  means  of 
security.  During  the  transit,  and  at  all  stopping-places,  due  care 
must  be  taken  of  all  goods ;  and  that  means  the  kind  and  measure 
of  care  appropriate  for  goods  of  that  description.  If  he  have  notice, 
by  writing  on  the  article  or  otherwise,  of  the  need  of  peculiar  care, 
—  as,  "  Glass,  with  great  care,"  or  "  This  side  uppermost,"  or  "  To 
be  kept  dry,"  —  he  is  bound  to  comply  with  such  directions,  suppos 
ing  them  not  to  impose  unnecessary  care  or  labor. 


OBLIGATION  OF  THE  COMMON  CAKKIER.  249 

If  he  carry  passengers,  he  must  receive  all  who  offer,  unless  he 
has  some  special  and  sufficient  reason  for  refusing. 

In  a  case  tried  before  the  Supreme  Judicial  Court  of  Massa- 
chusetts, it  was  held,  that  if  an  innkeeper,  who  has  frequently 
entered  a  railroad  depot  and  annoyed  passengers  by  soliciting  them 
to  go  to  his  inn,  receives  notice  from  the  superintendent  of  the  depot 
that  he  must  do  so  no  more,  and  he  nevertheless  repeatedly  enters 
the  depot  for  the  same  purpose,  and  afterwards  obtains  a  ticket  for 
a  passage  in  the  cars,  with  an  actual  intention  of  entering  the  cars 
as  a  passenger,  and  goes  into  the  depot  on  his  way  to  the  cars,  and 
the  superintendent,  believing  that  he  has  entered  the  depot  to  solicit 
passengers,  orders  him  to  go  out,  and  he  does  not  exhibit  his  ticket, 
nor  give  notice  of  his  real  intention,  but  presses  forward  towards 
the  cars,  and  the  superintendent  and  his  assistants  therefore  forcibly 
remove  him  from  the  depot,  using  no  more  force  than  is  necessary 
for  that  purpose,  such  removal  is  justifiable,  and  not  an  indictable 
assault  and  battery. 

A  common  carrier  is  bound  to  carry  his  passengers  over  the  whole 
route,  and  at  a  proper  speed,  or  supply  proper  means  of  transport ; 
to  demand  only  a  reasonable  or  usual  compensation ;  to  notify  his 
passengers  of  any  peculiar  dangers ;  to  treat  all  alike,  unless  there 
be  actual  and  sufficient  reason  for  the  distinction,  as  in  the  filthy 
appearance,  dangerous  condition,  or  misconduct  of  a  passenger;  and 
to  behave  to  all  with  civility  and  decorum. 

He  must  also  have  proper  carriages,  and  keep  them  in  good  con- 
dition, and  not  overload  them  ;  and  suitable  horses  and  drivers  ;  stop 
at  the  usual  places,  with  proper  intervals  for  rest  or  food  ;  take  the 
proper  route  ;  and  drive  at  proper  speed  ;  and  leave  the  passengers 
at  the  usual  stopping-places,  or  wherever  he  agrees  to.  In  none  of 
these  things  can  he  depart  from  what  is  usual  and  proper  at  his  own 
pleasure.  And  if  by  any  breach  of  these  duties  a  passenger  is 
injured,  the  carrier  is  responsible.  So  if  he  puts  his  passengers  in 
peril,  and  one  of  them  be  hurt  by  an  effort  to  escape,  as  in  jumping 
off,  it  is  no  defence  for  the  carrier  to  show  that  he  would  have  been 
safe  if  he  had  remained. 

In  one  case,  it  was  held  that  a  common  carrier  who  had  received 
a  pickpocket  as  a  passenger  on  board  his  vessel,  and  taken  his  fare, 


250       THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

could  not  put  him  on  shore  so  long  as  he  was  not  guilty  of  any  im- 
propriety. But  this  may  be  doubted.  The  common  carrier  must 
certainly  employ  competent  and  well-behaved  persons  for  all  duties ; 
and  for  failure  in  any  of  the  particulars  of  his  duties  and  obligations, 
he  is  responsible  not  only  to  the  extent  of  any  damage  caused  there- 
by, but  also,  in  many  cases,  for  pain  and  injury  to  the  feelings.  He 
is  also  bound  to  deliver  to  each  passenger  all  his  baggage  at  the  end 
of  his  journey ;  and  is  held  liable  if  he  delivers  it  to  a  wrong  party 
on  a  forged  order,  and  without  personal  default. 

Lastly,  he  must  make  due  delivery  of  the  goods  at  the  proper 
time,  in  the  proper  vay,  and  at  the  proper  place,  and  to  the 
proper  person  ;  and  this  person  should  be  some  one  who  was  author- 
ized by  the  owner  or  sender  to  receive  the  goods. 

If  a  party  authorized  to'receive  the  goods  refuse,  or  is  unable,  to 
do  so,  the  carrier  must  keep  them  for  the  owner,  and  with  due  care  ; 
but  now  under  the  liability  of  a  warehouseman,  and  not  of  a  carrier : 
that  is,  he  is  now  liable  only  for  fault  of  some  kind. 

So  the  carrier  must  keep  the  goods  for  the  owner,  if  he  has  good 
reason  to  believe  that  the  consignee  is  dishonest,  and  will  defraud 
the  owner  of  his  property.  As  to  the  time  when  goods  should  be 
delivered,  it  must  be  within  the  proper  hours  for  business,  when  they 
can  be  suitably  stored ;  or  if  the  goods  are  delivered  to  the  sender 
himself,  or  at  his  house,  then  at  some  suitable  and  convenient  hour. 

There  must  be  no  unnecessary  delay,  and  the  goods  must  be 
delivered  as  soon  after  a  detention  as  may  be  with  due  diligence. 

As  to  the  way  and  the  place  at  which  the  goods  should  be  de- 
livered, much  must  depend  upon  the  nature  of  the  goods,  and  much 
also  upon  the  usage  in  regard  to  them,  if  such  usage  exists. 

The  goods  should  be  so  left,  and  with  such  notice,  as  to  secure 
the  early,  convenient,  and  safe  reception  of  them  by  the  person  en- 
titled to  have  them.  Something  also  must  depend,  on  this  point, 
on  the  mode  of  conveyance.  A  man  may  carry  a  parcel  into  the 
house,  and  deliver  it  to  the  owner  or  his  servant ;  a  wagon  or  cart 
can  go  to  the  gate,  or  into  the  yard,  and  there  deliver  what  it  car- 
ries. A  vessel  can  go  to  one  wharf  or  another  ;  and  is  bound  to  go 
to  that  which  is  reasonably  convenient  to  the  consignee,  or  to  one 
that  was  agreed  upon  ;  but  a  vessel  is  not  always  bound  to  comply 


OBLIGATION  OF  THE  COMMON  CARRIER.  251 

with  requirements  of  the  consignee  as  to  the  very  wharf  the  goods 
should  be  left  at,  but  may  leave  the  goods  at  any  safe,  convenient, 
and  accessible  wharf  at  which  such  goods  are  usually  left. 

Where  the  goods  are  not  delivered  to  the  owner  personally,  or  to 
his  agent,  immediate  notice  should  be  given  to  the  owner.  The 
carrier  is  generally  obliged  to  give  notice  of  the  delivery  of  goods, 
and  if  the  owner  has  in  any  way  designated  how  the  goods  may  be 
delivered  to  himself,  he  is  bound  to  obey  this  direction.  The  notice 
must  be  prompt  and  distinct.  And  if  the  goods  are  delivered  at  an 
unsuitable  or  unauthorized  place,  no  notice  will  make  this  a  good 
delivery. 

Railroads  terminate  at  their  station,  and  although  goods  might  be 
sent  by  wagons  to  the  house  or  store  of  consignees,  this  is  not  usu- 
ally done,  as  it  is  considered  that  the  railroad  carrier  has  finished 
his  transit  at  his  own  terminus.  Usually,  the  consignee  of  goods 
sent  by  railroad  has  notice  from  the  consignor  when  to  expect  them ;. 
and  this  is  so  common,  that  it  is  seldom  necessary,  in  fact,  for  the 
agents  of  the  railroad  to  give  notice  to  the  consignee.  But  this 
should  be  given  where  it  is  necessary;  and  should  be  given  as 
promptly,  directly,  and  specifically  as  may  be  necessary  for  the  pur- 
pose of  the  notice. 

A  railroad  company  may  be  compared  to  owners  of  ships  in  this 
respect,  that  neither  can  take  the  cars  or  the  ships  farther  than  the 
station  or  the  wharf,  and  therefore  may  deliver  the  goods  there. 
But  a  carrier  by  water  is  bound  to  give  notice  that  the  goods  are  on 
the  wharf,  and  is  not  exonerated  as  carrier  until  he  gives  such  notice; 
whereas,  a  railroad  company  is  not  bound  to  give  notice. 

It  may  happen  that  some  third  party  may  claim  the  goods  under 
a  title  adverse  to  that  of  the  consignor  or  consignee.  If  the  carrier 
refuse  to  deliver  them  to  this  third  party,  and  it  turns  out  that  the 
claimant  had  a  legal  right  to  demand  them,  the  carrier  would  be 
liable  in  damages  to  him.  But  the  carrier  may  and  should  demand 
full  and  clear  evidence  of  the  claimant's  title ;  and  if  the  evidence 
be  not  satisfactory,  he  may  demand  security  and  indemnity.  If  the 
evidence  or  the  indemnity  be  withheld,  he  certainly  should  not  be 
held  answerable  for  any  thing  beyond  tha^  amount  which  the  goods 
themselves  would. satisfy,  for  he  is  in  no  fault.  If  he  delivers  the 

18 


252  THE    CARRIAGE  OF  GOODS  AND  PASSENGERS. 

goods  to  such  claimant,  proof  that  the  claimant  had  good  title  is  an 
adequate  defence  against  any  suit  by  the  consignor  or  consignee  for 
non-delivery. 

SECTION  IV. 
THE    IJEN    OF    THE    COMMON    CARRIER. 

THE  legal  meaning  of  this  word,  as  we  have  said  before,  when 
we  have  had  occasion  to  use  the  word  in  preceding  chapters,  is  the 
right  of  holding  or  detaining  property  until  some  charge  against  it, 
or  some  claim  upon  the  owner  on  account  of  it,  is  satisfied. 

The  common  carrier  has  this  right  against  all  the  goods  he  carries, 
for  his  compensation.  While  he  holds  them  for  this  purpose,  he  is 
not  liable  for  loss  or  injury  to  them  as  a  common  carrier ;  that,  is, 
not  unless  the  injury  happen  from  his  own  fault. 

He  may  not  only  hold  the  goods  for  his  compensation,  but  may 
recover  this  out  of  them,  by  any  of  the  usual  means  in  which  a  lien 
upon  personal  chattels  is  made  productive.  That  is,  he  holds  them 
just  as  if  they  were  pledged  to  him  by  the  owner  as  a  security  for 
the  debt.  Therefore,  if  the  debt  be  not  paid  hi  a  reasonable  time 
after  it  is  due  and  demanded,  the  carrier  may  have  a  decree  of  a 
court  of  equity  for  their  sale ;  or  may  sell  them  himself  at  auction, 
retaining  his  pay  from  the  proceeds,  and  paying  over  the  remainder. 
But  to  make  this  course  justifiable  and  safe,  the  carrier  must  wait  a 
reasonable  time,  and  give  full  notice  of  his  intention,  so  that  the 
owner  may  have  a  convenient  opportunity  to  redeem  the  goods ;  and 
there  must  be  proper  advertisement  of  the  sale,  and  every  usual  pre- 
caution taken  to  insure  a  favorable  sale  ;  and  the  carrier  must  not 
himself  buy  the  goods,  and  must  act  in  all  respects  with  entire 
honesty. 

SECTION  V. 
THE    IJLABrLITY    OF    THE    COMMON    CARRIER, 

THIS  is  perfectly  well  established  as  a  rule  of  law,  although  it  is 
very  exceptional  and  peculiar.  It  is  sometimes  said  to  arise  from 


LIABILITY   OF  THE  COMMON  CARRIER  253 

the  public  carrier  being  a  kind  of  public  officer.  But  the  true 
reason  is  the  confidence  which  is  necessarily  reposed  in  him,  the 
power  he  has  over  the  goods  intrusted  to  him,  the  ease  with  which 
he  may  defraud  the  owner  of  them,  and  yet  make  it  appear  that  he 
was  not  in  fault,  and  the  difficulty  which  the  owner  might  have  in 
making  out  proof  of  his  default.  This  reason  it  is  important  to  re- 
member, because  it  helps  us  to  construe  and  apply  the  rules  of  law 
on  this  subject.  Thus,  the  rule  is  that  the  common  carrier  is  liable 
for  any  loss  or  injury  to  goods  under  his  charge,  unless  it  be  caused 
by  the  act  of  God,  or  by  the  public  enemy.  The  rule  is  intended  to 
hold  the  common  carrier  responsible  wherever  it  was  possible  that  he 
caused  the  loss,  either  by  negligence  or  design. 

Hence,  the  act  of  God  means  some  act  in  which  neither  the  carrier 
himself,  nor  any  other  man,  had  any  direct  and  immediate  agency. 
If,  for  example,  a  house  in  which  the  goods  are  at  night  is  struck  by 
lightning,  or  blown  over  by  a  tempest,  or  washed  away  by  inunda- 
tion, the  carrier  is  not  liable.  This  is  an  act  of  God,  although  man's 
agency  interferes  in  causing  the  loss ;  for  without  that  agency,  the 
goods  would  not  have  been  there.  But  no  man  could  have  directly 
caused  the  loss.  On  the  other  hand,  if  the  building  was  set  on  fire 
by  an  incendiary  at  midnight,  and  the  rapid  spread  of  the  flames 
made  it  absolutely  impossible  to  rescue  the  goods,  this  might  be  an 
inevitable  accident  if  the  carrier  were  wholly  innocent,  but  it  would 
also  be  possible  that  the  incendiary  was  in  collusion  with  the  carrier 
for  the  purpose  of  concealing  his  theft;  and  therefore  the  carrier 
would  be  liable  for  such  a  loss,  however  innocent. 

As  a  general  rule,  the  common  carrier  is  always  liable  for  loss  by 
fire,  unless  it  be  caused  by  lightning,  an  accidental  fire  not  being 
considered  an  act  of  God,  or  a  peril  of  the  sea ;  and  this  rule  has 
been  applied  to  steamboats  and  other  vessels.  So,  it  may  be  true 
that  after  the  lightning,  the  tempest,  or  inundation,  the  carrier  was 
negligent,  and  so  lost  the  goods  which  might  have  been  saved  by 
proper  efforts,  or  that  he  took  the  opportunity  to  steal  them.  If 
this  could  be  shown,  the  carrier  would,  of  course,  be  liable  ;  but  the 
law  will  not  suppose  this  without  proof,  if  the  first  and  main  cause 
were  such  that  the  carrier  could  not  have  been  guilty  in  respect  to 
it.  So,  a  common  carrier  would  be  liable  for  a  loss  caused  by  a 


254       THE  CAKKIAGE  OP  GOODS  AND  PASSENGERS. 

robbery,  however  sudden,  unexpected,  and  irresistible,  or  by  a  theft, 
however  wise  and  full  his  precautions,  and  however  subtle  and 
ingenious  the  theft,  although  either  of  these  might  seem  to  be  un- 
avoidable by  any  means  of  safety  which  it  would  be  at  all  reasonable 
to  require. 

The  general  principles  of  agency  extend  to  common  carriers,  and 
make  them  liable  for  the  acts  of  their  agents,  done  while  in  the  dis- 
charge of  the  agency  or  employment.  So,  the  knowledge  of  his 
agent  is  the  knowledge  of  the  carrier,  if  the  agent  be  authorized 
expressly,  or  by  the  nature  of  his  employment,  to  receive  this  notice 
or  knowledge.  But  an  agent  for  a  common  carrier  may  act  for 
himself,  —  as  a  stage-coachman  in  carrying  parcels,  for  which  he  is 
paid  personally  and  does  not  account  with  his  employer,  —  and  then 
the  employer,  as  we  have  said,  is  not  liable,  unless  the  owner  of  the 
goods  believed  the  stage-coachman  carried  the  goods  for  his 
employer,  and  was  justified  by  the  facts  and  apparent  circumstances 
in  so  believing. 

A  carrier  may  be  liable  beyond  his  own  route.  It  is  very  common 
for  carriers,  who  share  between  them  the  parts  of  a  long  route,  to 
unite  in  the  business  and  the  profits,  and  then  all  are  liable  for  a 
loss  on  any  part  of  the  route. 

If  they  are  not  so  united  in  fact,  but  say  they  are  so,  or  say  what 
indicates  that  they  are  so,  they  justify  a  sender  in  supposing  they 
are  united,  and  then  they  are  equally  liable. 

If  a  carrier  takes  goods  to  carry  only  as  far  as  he  goes,  and  then 
engages  to  send  them  forward  by  another  carrier,  he  is  liable  as 
carrier  to  the  end  of  his  own  route  ;  he  is  liable  also  if  he  neglects  to 
send  the  goods  on  ;  but  he  is  not  liable  for  what  may  happen  to  them 
afterwards. 


SECTION    VI 
THE    CARRIER    OF    PASSENGERS. 

THE  carriers  of  passengers  are  under  a  more  limited  liability  than 
the  carriers  of  goods.  This  is  now  well  settled.  The  reason  is,  that 
they  have  not  the  same  control  over  passengers  as  over  goods ;  can- 


NOTICE  BY  THE   CARKIEK    BESPECTING  HIS  LIABILITY.      255 

not  fasten  them  down,  and  use  other  means  of  securing  them.  But 
while  the  liability  of  the  carrier  of  passengers  is  thus  mitigated,  it  is 
still  stringent  and  extreme.  No  proof  of  care  will  excuse  the  carrier 
if  he  loses  goods  committed  to  him.  But  proof  of  the  utmost  care 
will  excuse  him  for  injury  done  to  passengers  ;  for  the  carrier  of 
passengers  is  liable  for  injury  to  them,  unless  he  can  show  that  he 
took  all  possible  care,  —  giving  always  a  reasonable  construction  to 
this  phrase ;  and  in  the  case  of  railroad  companies  there  is  authority 
for  using  the  words  in  almost  their  literal  meaning ;  that  is,  for 
holding  them  liable  for  all  injury  to  passengers  which  could  have 
been  possibly  avoided. 


SECTION   VII. 

A  NOTICE    BY    THE    CARRIER,    RESPECTING   HIS   INABILITY. 

THE  common  carrier  has  a  right  to  make  a  special  agreement  with 
the  senders  of  goods,  which  shall  materially  modify,  or  even  wholly 
prevent,  his  liability  for  accidental  loss  or  injury  to  the  goods. 

The  question  is,  "What  constitutes  such  a  bargain  ?  A  mere  notice 
that  the  carrier  is  not  responsible,  or  his  refusal  to  be  responsible, 
although  brought  home  to  the  knowledge  of  the  other  party,  does 
not  necessarily  constitute  an  agreement.  The  reason  is  this.  The 
sender  has  a  right  to  insist  upon  sending  his  goods,  and  the  pas- 
senger has  a  right  to  insist  upon  going  himself  with  customary 
baggage,  leaving  the  carrier  to  his  legal  responsibility ;  and  the 
carrier  is  bound  to  take  them  on  these  terms.  If,  therefore,  the 
sender  or  the  passenger,  after  receiving  such  notice,  only  sends  or 
goes  in  silence,  and  without  expressing  any  assent,  especially  if  the 
notice  be  given  at  such  time,  or  under  such  circumstances,  as  would 
make  it  inconvenient  for  the  sender  not  to  send,  or  for  the  passenger 
not  to  go,  then  the  law  will  not  presume  from  his  sending  or  going 
an  assent  to  the  carrier's  terms. 

But  the  assent  may  be  expressed  by  words,  or  made  manifest  by 
nets ;  and  it  is  in  each  case  a  question  of  evidence  for  the  jury, 
whether  there  was  such  an  agreement. 


256  THE  CAEKIAGE  OF  GOODS  A^D  PASSENGERS. 

But  a  notice  by  the  carrier,  which  only  limits  and  defines  his  lia- 
bility to  a  reasonable  extent,  without  taking  it  away,  as  one  which 
states  what  kind  of  goods  he  will  carry,  and  what  he  will  not ;  or  to 
what  amount  only  he  will  be  liable  for  passengers'  baggage,  without 
special  notice  ;  or  what  information  he  will  require,  if  certain  arti- 
cles, as  jewels  or  gold,  are  carried  ;  or  what  increased  rates  must  be 
paid  for  such  things,  —  any  notice  of  this  kind,  if  in  itself  reasona- 
ble and  just,  will  bind  the  party  receiving  it. 

No  party  will  be  affected  by  any  notice,  —  neither  the  carrier,  nor 
a  sender  of  goods,  nor  a  passenger,  —  unless  a  knowledge  of  it  can 
be  brought  home  to  him.  In  a  case  in  Pennsylvania,  where  the 
notice  was  in  the  English  language,  and  the  passenger  was  a  Ger- 
man, who  did  not  understand  English,  it  was  held  that  the  carrier 
must  prove  that  the  passenger  had  actual  knowledge  of  the  limita- 
tion in  the  notice. 

But  the  knowledge  may  be  brought  home  to  him  by  indirect 
evidence.  As  by  showing  that  it  was  stated  on  a  receipt  given  to 
him,  or  on  a  ticket  sold  him,  or  in  a  newspaper  which  he  read,  or 
even  that  it  was  a  matter  of  usage,  and  generally  known.  This 
question  is  one  of  fact,  which  the  jury  will  determine  upon  all  the 
evidence,  under  the  direction  of  the  court.  And  if  the  notice  is 
ambiguous,  they  will  be  directed  to  give  it  the  meaning  which  is 
against  the  carrier,  because  it  was  his  business  to  make  it  plain  and 
certain. 

Any  fraud  towards  the  carrier,  as  a  fraudulent  disregard  of  a  no- 
tice, or  an  effort  to  cast  on  him  a  responsibility  he  is  not  obliged  to 
assume,  or  to  make  his  liability  seem  to  be  greater  than  it  really  is, 
will  extinguish  the  liability  of  the  carrier  so  far  as  it  is  affected  by 
such  a  fraud. 

If  a  carrier  gives  notice  which  he  is  authorized  to  give,  the  party 
receiving  it  is  bound  by  it,  and  the  carrier  is  under  110  obligation  to 
make  a  special  inquiry  or  investigation  to  see  that  the  notice  is  com- 
plied with,  but  may  assume  that  this  is  done. 

It  should,  however,  be  remarked  that  such  notice  affects  the  lia- 
bility of  the  common  carrier  only  so  far  as  it  is  peculiar  to  him  ; 
that  is,  his  liability  for  a  loss  which  occurs  without  his  agency  or 
fault ;  for  he  is  just  as  liable  as  he  would  be  without  any  notice, 
for  a  loss  or  injury  caused  by  his  own  negligence  or  default. 


CARRIER'S  LIABILITY  J?OR  GOODS   OF  PASSENGERS.        257 

Perhaps  a  common  carrier  might  make  a  valid  bargain  which 
would  protect  him  against  every  thing  but  his  own  wilful  or  fraudu- 
lent misconduct.  But  no  bargain  could  be  made  to  protect  him 
against  this. 


SECTION  vm. 

THE   CARRIER'S   UABUJTY  FOR  GOODS  CARRIED  BY  PASSENGERS. 

A  CAKRIER  of  goods  knows  what  goods,  or  rather  what  parcels 
and  packages,  he  receives  and  is  responsible  for.  A  carrier  of  pas- 
sengers is  responsible  for  the  goods  they  carry  with  them  as  bag- 
gage ;  what  that  is,  the  carrier  does  not  always  know ;  and  he  is 
responsible  only  to  the  extent  of  what  might  be  fairly  and  naturally 
carried  as  baggage.  This  must  always  be  a  question  of  fact,  to  be 
settled  as  such  by  the  jury,  upon  all  the  evidence,  and  under  the 
direction  of  the  court.  But  there  can  be  no  precise  and  definite 
standard.  A  traveller  on  a  long  journey  needs  more  money  and 
more  baggage  than  on  a  short  one  ;  one  going  to  some  places  and 
for  some  purposes  needs  more  than  one  going  to  other  places  or 
for  other  purposes. 

Thus  in  New  York  it  was  decided  that  baggage  does  not  properly 
include  money  in  a  trunk,  or  any  articles  usually  carried  about  the 
person.  And  in  another  New  York  case,  it  was  held  that,  where 
the  baggage  of  a  passenger  consists  of  an  ordinary  travelling-trunk, 
in  which  there  is  a  large  sum  of  money,  such  money  is  not  consid- 
ered as  included  under  the  term  baggage,  so  as  to  render  the  carrier 
responsible  for  it.  But  generally  a  passenger  may  carry  as  baggage, 
money  not  exceeding  an  amount  ordinarily  carried  for  travelling- 
expenses.  So  in  Massachusetts  it  was  held  that  common  carriers 
are  responsible  for  money  bond  fide  included  in  the  baggage  of  a  pas- 
senger, for  travelling-expenses  and  personal  use,  to  an  amount  not 
exceeding  what  a  prudent  person  would  deem  proper  and  neces- 
sary for  the  purpose. 

In  Pennsylvania,  carriers  have  been  held  responsible  for  ladies' 
trunks  containing  apparel  and  jewels.  And  in  Illinois,  a  com- 
mon carrier  of  passengers  has  been  held  liable  for  the  loss  of  a 


258       THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

pocket-pistol,  and  a  pair  of  duelling-pistols,  contained  in  the  car- 
petr-bag  of  a  passenger,  which  was  stolen  out  of  the  possession  of  tho 
carrier.  But  in  Tennessee,  it  has  been  held  that  "  a  silver  watch, 
worth  about  thirty-five  dollars,  also  medicines,  handcuffs,  locks, 
&c.,  worth  about  twenty  dollars,"  were  not  included  in  the  term  bag- 
gage, and  that  the  carrier  was  not  responsible  for  their  loss.  In  Ohio, 
it  has  been  held  that  a  gold  watch,  of  the  value  of  ninety-five  dol- 
lars, was  a  part  of  the  traveller's  baggage,  and  his  trunk  a  proper  place 
to  carry  it  in.  In  another  New-York  case,  it  has  been  held  that 
the  owners  of  steamboats  were  liable  as  common  carriers  for  the  bag- 
gage of  passengers ;  but,  to  subject  them  to  damages  for  loss  thereof, 
it  must  be  strictly  baggage ;  that  is,  such  articles  of  necessity  and 
personal  convenience  as  are  usually  carried  by  travellers.  And  it  was 
accordingly  held,  in  that  case,  that  the  carrier  was  not  liable  for  the 
loss  of  a  trunk  containing  valuable  merchandise  and  nothing  else, 
although  it  did  not  appear  that  the  plaintiff  had  any  other  trunk 
with  him.  But  in  a  case  in  Pennsylvania,  where  the  plaintiff  was 
a  carpenter  moving  to  the  State  of  Ohio,  and  his  trunk  contained 
carpenters'  tools  to  the  value  of  fifty-five  dollars,  which  the  jury 
found  to  be  the  reasonable  tools  of  a  carpenter,  it  was  held  that  he 
was  entitled  to  recover  for  them  as  baggage. 

There  is  some  diversity,  and  perhaps  some  uncertainty,  in  the 
application  of  the  rule ;  but  the  rule  itself  is  well  settled,  and  a  rea- 
sonable construction  and  application  of  it  must  always  be  made ; 
and,  for  this  purpose,  the  passenger  himself,  and  all  the  circum- 
stances of  the  case,  must  be  considered. 

The  purpose  of  the  rule  is  to  prevent  the  carrier  from  becoming 
liable  by  the  fraud  of  the  passenger,  or  by  conduct  which  would 
have  the  effect  of  fraud  ;  for  this  would  be  the  case  if  a  passenger 
should  carry  merchandise  by  way  of  baggage,  and  thus  make  the 
carrier  of  passengers  a  carrier  of  goods  without  knowing  it  and  with- 
out being  paid  for  it. 

Generally,  a  common  carrier  of  passengers,  by  stage,  packet, 
steamer,  or  cars,  carries  the  moderate  and  reasonable  baggage  of 
a  passenger,  without  being  paid  specifically  for  it.  But  the  law 
considers  a  payment  for  this  so  far  included  in  the  payment  of  the 
fare,  as  to  form  a  sufficient  ground  for  the  carrier's  liability  to  the 
extent  above  stated. 


CABEIEE'S  LIABILITY  FOE  GOODS   OF  PASSENGEES.        259 

The  carrier  is  only  liable  for  the  goods  or  baggage  delivered  to 
him  and  placed  under  his  care.  Hence,  if  a  sender  of  goods  send 
his  own  servant  with  them,  and  intrust  them  to  him  and  not  to  the 
carrier,  the  carrier  is  not  responsible.  So,  if  a  passenger  keeps  his 
baggage,  or  any  part  of  it,  on  his  person,  or  in  his  own  hands,  or 
within  his  own  sight  and  immediate  control,  instead  of  delivering  it 
to  the  carrier  or  his  servants,  the  carrier  is  not  liable,  as  carrier,  for 
any  loss  or  injury  which  may  happen  to  it;  that  is,  not  without 
actual  default  in  the  matter.  Thus,  in  an  action  brought  in  New 
York  to  charge  a  railroad  company,  as  common  carriers,  for  the 
loss  of  an  overcoat  belonging  to  a  passenger,  it  appeared  that  the 
coat  was  not  delivered  to  the  defendants,  but  that  the  passenger, 
having  placed  it  on  the  seat  of  the  car  in  which  he  sat,  forgot  to 
take  it  with  him  when  he  left,  and  it  was  afterwards  stolen ;  and  it 
was  held  that  the  defendants  were  not  liable.  But  if  the  baggage 
of  a  passenger  is  delivered  to  a  common  carrier,  or  his  servant,  he  is 
liable  for  it  in  the  same  way,  and  to  the  same  extent,  as  he  is  for 
goods  which  he  carries. 

In  this  country  the  rules  of  evidence  permit  the  traveller  to  main- 
tain his  action  against  the  carrier  by  proving,  by  his  own  testimony, 
the  contents  of  a  lost  trunk  or  box,  and  their  value.  And  the  tes- 
timony of  the  wife  of  the  owner  is  similarly  admissible.  But  it  is 
always  limited  to  such  things  —  in  quantity,  quality,  kind,  and 
value  —  as  might  reasonably  be  supposed  to  be  carried  in  such  a 
trunk  or  valise.  The  rule,  with  this  limitation,  seems  reasonable 
and  safe,  and  is  quite  generally  adopted.  In  Massachusetts  it  was 
distinctly  denied  by  the  Supreme  Court,  but  was  afterwards  estab- 
lished by  statute. 

The  common  carrier  of  goods  or  of  passengers  is  liable  to  third 
parties  for  any  injury  done  to  them  by  the  negligence  or  default  of 
the  carrier,  or  of  his  servants.  And  it  would  seem  that  he  is  liable 
even  for  the  wilful  wrong-doing  of  his  servants,  if  it  was  committed 
while  in  his  employ,  and  in  the  management  of  the  conveyance  under 
his  control,  although  the  wrong  was  done  in  direct  opposition  to  his 
express  commands.  So  he  is  for  injury  to  property  by  the  wayside, 
caused  by  his  fault.  But  the  negligence  of  the  party  suffering  the 
injury,  if  it  was  material  and  contributed  to  the  injury,  is  a  good 


260  THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

defence  for  the  carrier ;  unless  malice  on  the  carrier's  part  can  be 
shown. 

Where  the  party  injured  is  in  fault,  the  common  carrier  has  still 
been  held  liable,  if  that  fault  was  made  possible  and  injurious 
through  the  fault  of  the  carrier.  If  passengers  are  carried  gratui- 
tously, that  is,  without  pay,  the  common  carrier  is  still  liable  for 
injury  caused  by  his  negligence. 

"Whether  a  railroad  company  is  responsible  for  fire  set  to  build- 
ings or  property  along  the  road,  without  negligence  on  its  part,  has 
been  much  considered  in  this  country.  In  some  of  our  States  they 
are  made  so  liable  by  statute  provision.  And  this  fact,  together 
with  the  general  principles  of  liability  for  injury  done,  would  seem 
to  lead  to  the  conclusion  that  they  are  not  liable,  unless  in  fault,  or 
unless  made  so  by  statute. 


(89.) 
Steam  Packet  Company. 

Marks  and  Numbers. 

Received  from 

the  following  articles,  being  marked  and  numbered  as 
in  the  margin,  in  apparent  good  order,  the  contenti 
and  value  unknown, 

to  be  transported  from  to  on 

one  of  the  company's  steamers,  and  to  be  delivered  on 
their  wharf  in  ,  in  like  good  order  and 

condition,  the  dangers  of  the  sea,  of  fire  on  board  or  on 
wharf,  collision,  and  all  other  accidents  excepted. 

DATED  AT  ,     ~\ 

186    )  For  the  company. 

The  following  form  will  show  the  terms  and  conditions  on  which 
our  express-companies  carry  their  freight.  This  paper,  given  and 
received,  constitutes  a  contract. 


FORMS  OF  COMMON  CARRIER'S  RECEIPTS. 


261 


Duplicate. 


(90.) 
Express  Company* 

Fast  Freight  Line. 


18 


Received  from 

the  following  packages,  in  apparent  good 
order,  contents  and  value  unknown : 


EXPEESS  COMPANY. 


Advanced  Charges,  $ 
BATES. 

D*ble  1st  Class      cts.  per  100  Ibs. 
1st  Class  cents  per  100  Ibs. 

2d  Class  cents  per  100  Ibs. 

3d  Class  cents  per  100  Ibs. 

4th  Class  cents  per  100  Ibs. 

AS  PER  CLASSIFICATION  ON  BACK, 


Marked  and  numbered  as  in  the  margin,  to 
be  forwarded  by  railroad  and  delivered  at 

upon  payment  of  freight  therefor, 
as  noted  in  the  margin,  subject  to  the  condi- 
tions and  rules  on  the  back  hereof  and  those 
of  the  several  railroads  over  which  the  prop- 
erty is  transported,  which  constitute  a  part  of 
this  contract. 

Agent. 


On  the  back  of  this  receipt  is  a  minute  and  very  full  classification 
of  all  articles  likely  to  be  offered  for  transportation,  followed  by  the 


Conditions  and  Rules. 

The  destination,  name  of  the  consignee,  and  weight  of  all  articles  of  freight, 
must  be  plainly  and  distinctly  marked,  or  no  responsibility  will  be  taken  for  their 
miscarriage  or  loss ;  and  when  designed  to  be  forwarded,  after  transportation  on 
the  route,  a  written  order  must  be  given,  with  the  particular  line  of  conveyance 
marked  on  the  goods,  if  any  such  be  preferred  or  desired. 

The  companies  will  not  hold  themselves  liable  for  the  safe  carriage  or  custody 
of  any  articles  of  freight,  unless  receipted  for  by  an  authorized  agent ;  and  no 
agent  of  the  line  is  authorized  to  receive,  or  agree  to  transport,  any  freight,  which 
is  not  thus  receipted  for. 

No  responsibility  will  be  admitted,  under  any  circumstances,  to  a  greater 


262      THE  CAEEIAGE  OF  GOODS  AND  PASSENGERS. 

amount  upon  any  single  article  of  freight  than  $200,  unless  upon  notice  gi?en  of 
such  amount,  and  a  special  agreement  therefor.  Specie,  drafts,  bank-bills,  and 
other  articles  of  great  intrinsic  or  representative  value,  will  only  be  taken  upon  a 
representation  of  their  value,  and  by  a  special  agreement  assented  to  by  the  super- 
intendent of  the  receiving  road. 

The  companies  will  not  hold  themselves  liable  at  all  for  injuries  to  any  articles 
of  freight  during  the  course  of  transportation,  arising  from  the  weather,  or  acci- 
dental delays,  or  natural  tendency  to  decay.  Nor  will  their  guaranty  of  special 
despatch  cover  cases  of  unavoidable  or  extraordinary  casualties  or  storms,  or  delays 
occasioned  by  low  water  and  ice ;  and  may  be  stored  at  the  risk  and  expense  of  the 
owner.  Nor  will  they  hold  themselves  liable,  as  COMMOX  CARRIERS,  for  such 
articles,  after  their  arrival  at  their  place  of  destination  at  the  company's  warehouses 
or  depots. 

Carriages  and  sleighs,  eggs,  furniture,  looking-glasses,  glass  and  crockery  ware, 
machinery,  mineral  acids,  piano-fortes,  stoves  and  castings,  sweet-potatoes,  wrought 
marble,  all  liquids  put  up  in  glass  or  earthen  ware,  fruit,  and  live  animals,  will  only 
be  taken  at  the  owner's  risk  of  fracture  or  injury  during  the  course  of  transporta- 
tion, loading  and  unloading,  unless  specially  agreed  to  the  contrary. 

Gunpowder,  friction  matches,  and  like  combustibles,  will  not  be  received  on  any 
terms ;  and  all  persons  procuring  the  reception  of  such  freight  by  fraud  or  conceal- 
ment, will  be  held  responsible  for  any  damage  which  may  arise  from  it  while  in  tLe 
custody  of  the  company. 

It  is  further  stipulated  and  agreed,  that  goods  shipped  to  points  west  of 

shall  be  subject  to  a  change  in  classification   and  corresponding 
change  of  rates  beyond  those  points. 

Cases  or  packages  of  boots  and  shoes,  and  of  other  articles  liable  to  peculation 
or  fraudulent  abstraction,  must  be  strapped  with  iron  or  wood,  or  otherwise  securely 
protected,  or  the  companies  will  not  be  liable  for  diminution  of  the  original  con- 
tents, and  the  companies  will  hold  the  freighter,  in  all  cases,  to  bear  the  loss  arising 
from  improper  packing. 

It  is  also  agreed  between  the  parties  that  the  said  companies,  and  the  railroads 
and  steamboats  with  which  they  connect,  shall  not  be  held  accountable  for  any 
deficiency  hi  packages  if  receipted  for  to  them  in  good  order. 

All  articles  of  freight  arriving  at  their  places  of  destination  must  be  taken  away 
within  twenty-fours  hours  after  being  unladen  from  the  cars,  —  each  company 
reserving  the  right  of  charging  storage  on  the  same,  or  placing  the  same  in  store  at 
the  risk  and  expense  of  the  owner,  if  they  see  fit,  after  lapse  of  that  time. 


THE  STATUTE   OF  LIMITATIONS.  263 

CHAPTER  XXI. 

JLiIMIT-A-TIONS. 

SECTION  I. 
THE    STATUTE    OF    LIMITATIONS. 

ALL  of  our  States  have  what  is  called  a  Statute  of  Limitations. 
It  is  not  exactly  the  same  everywhere  ;  but  generally  it  enacts  that 
all  actions  of  account,  and  all  which  can  be  brought  for  indebtedness 
or  damages,  and  all  actions  of  debt  grounded  upon  any  lending,  or 
contract  without  seal,  and  all  actions  for  arrearages  of  rent,  shall  be 
commenced  and  sued  within  sis  years  next  after  the  cause  of  such 
actions  or  suit  arises,  and  not  after.  In  few  words,  all  claims  which 
do  not  rest  on  a  seal  or  a  judgment  must  be  sued  within  six  years 
from  the  time  when  they  arise. 

In  some  States,  a  statute  provides,  in  substance,  that,  if  a  debt  or 
promise  be  once  barred  by  the  Statute  of  Limitations,  no  acknowl- 
edgment of  the  debt  or  new  promise  shall  renew  the  debt,  and  take 
away  the  effect  of  the  statute,  unless  the  new  promise  is  in  writing, 
and  is  signed  by  the  party  who  makes  the  promise.  But  this 
statute  expressly  permits  a  part-payment  either  of  principal  or  inter- 
est of  the  old  debt  to  have  the  same  effect  as  a  new  promise.  And 
this  statute  also  provides,  that  if  there  be  joint  contractors  or  debtors, 
and  a  plaintiff  is  barred  by  the  statute  against  both,  but  the  bar  of 
the  statute  is  removed  as  to  one  by  a  new  promise  or  otherwise,  the 
plaintiff  may  have  judgment  against  this  one,  but  not  against  the 
other. 

Such  statutes  have  been  passed  in  Maine,  Massachusetts,  Ver- 
mont, New  York,  Indiana,  Michigan,  Arkansas,  and  California. 


264  LIMITATIONS. 

SECTION  II. 
CONSTRUCTION    OP    THE    STATUTE. 

FOR  the  law  of  limitation  there  is  a  twofold  foundation :  in  the 
first  place,  the  actual  probability  that  a  debt  which  has  not  been 
claimed  for  a  long  time  was  paid,  and  that  this  is  the  reason  of  the 
silence  of  the  creditor.  But,  besides  this  reason,  there  is  the  inex- 
pediency and  injustice  of  permitting  a  stale  and  neglected  claim  or 
debt,  even  if  it  has  not  been  paid,  to  be  set  up  and  enforced  after  a 
long  silence  and  acquiescence. 

Before  inquiring  into  the  rules  of  law  which  now  apply  to  the  case 
of  an  acknowledgment  or  new  promise,  it  should  be  remarked  that 
a  prescription,  or  limitation,  of  common  law,  much  more  ancient 
than  the  statutes  above  quoted,  is  still  in  full  force.  This  is  the 
presumption  of  payment  after  twenty  years,  which  is  applicable  to 
all  debts  ;  not  only  the  simple  contracts  to  which  the  Statutes  of 
Limitation  refer,  that  is,  contracts  which  are  merely  oral,  or  which 
if  written  have  no  seal,  but  to  specialties,  or  contracts  or  debts  under 
seal  or  by  judgment  of  court.  Of  these  it  will  not  be  necessary  to 
speak  here,  excepting  to  remark,  that  in  a  few  of  our  States  the 
Statute  of  Limitation  excepts  a  promissory  note  which  is  signed 
in  the  presence  of  an  attesting  witness,  and  is  put  in  suit  by  the 
original  payee,  or  his  executor  or  administrator ;  such  a  note  in 
those  States,  as  in  Maine  and  Massachusetts,  may  be  sued  any  time 
within  twenty  years  after  it  is  due.  Bank-bills  and  other  evidences 
of  debt  issued  by  banks,  are  everywhere  excepted  from  the  operation 
of  the  statute. 


SECTION  m. 

THE    NEW    PROMISE. 

WHAT  is  the  new  promise  which  suffices  to  take  a  case  out  of  the 
statute  ?  A  mere  acknowledgment,  which  does  not  contain,  by  any 
reasonable  implication  or  construction,  a  new  promise,  is  not  suffi- 
cient, and  still  less  so  if  it  expressly  excludes  a  new  promise.  In 


PAKT-PAYMENT.  265 

the  leading  American  case  upon  tins  point,  before  the  Supreme  Court 
of  the  United  States,  it  was  proved,  in  answer  to  the  plea  of  the 
Statute  of  Limitations,  that  the  defendant,  one  of  the  partners  of  a 
firm  then  dissolved,  said  to  the  plaintiff,  "  I  know  we  are  owing 
you  ;  "  "  I  am  getting  old,  and  I  wish  to  have  the  business  settled :  " 
it  was  held  that  these  expressions  were  insufficient  to  revive  the 
debt.  So,  in  New  Hampshire,  in  an  action  on  a  promissory  note, 
the  defendant,  on  being  asked  to  pay  the  note,  said  "  he  guessed  the 
note  was  outlawed,  but  that  would  make  no  difference,  he  was  will- 
ing to  pay  his  honest  debts,  always."  As  he  did  not  state  in  direct 
terms  that  he  was  willing  to  pay  the  note,  this  was  held  not  sufficient 
to  revive  the  debt.  A  new  promise  is  not  now  implied  by  the  law 
itself,  from  a  mere  acknowledgment. 

The  new  promise  need  not  define  the  amount  of  the  debt.  That 
can  be  done  by  other  evidence,  if  only  the  existence  of  the  debt  and 
the  purpose  of  paying  it  are  acknowledged.  Still,  the  new  promise 
must  be  of  the  specific  debt,  or  must  distinctly  include  it ;  for  if 
wholly  general  and  undefined,  it  is  not  enough.  A  testator  who 
provides  for  the  payment  of  his  debts  generally,  does  not  thereby 
make  a  new  promise  as  to  any  one  of  them. 

If  the  new  promise  is  conditional,  the  party  relying  upon  it  must 
be  prepared  to  show  that  the  condition  has  been  fulfilled.  Thus,  if 
the  new  promise  be  to  pay  "  when  I  am  able,"  the  promisee  must 
prove  not  only  the  promise,  but  that  the  promisor  is  able  to  pay  the 
debt. 

As  the  acknowledgment  should  be  voluntary,  it  follows  that  one 
made  under  process  of  law,  as  by  a  bankrupt,  or  by  answers  to  inter- 
rogatories which  could  not  be  avoided,  should  never  have  the  effect 
of  a  new  promise. 


SECTION  IV. 

PAKT-PAYMENT. 

A  PART-PAYMENT  of  a  debt  is  such  a  recognition  of  it  as  implies  a 
new  promise ;  even  if  it  was  made  in  goods  or  chattels,  if  they  were 
offered  as  payment,  and  agreed  to  be  received  as  payment,  or  by 


266  LIMITATIONS. 

negotiable  promissory  note  or  bill.  Thus,  in  a  case  where  one 
was  sued  for  money  due  for  a  quantity  of  hay,  and  pleaded  that  it  had 
been  due  more  than  six  years,  which  was  a  good  defence,  the  plain- 
tiff proved  in  reply  that  defendant  had  given  him  within  six  years  a 
gallon  of  gin  as  part-payment  for  his  debt ;  and  it  was  held  that  this 
took  the  case  out  of  the  Statute  of  Limitations,  and  the  plaintiff  re- 
covered. But  a  payment  has  this  effect  only  when  the  payment  is 
made  as  of  a  part  of  a  debt.  If  it  is  made  in  settlement  of  the 
whole,  of  course  it  is  no  promise  of  more.  And  a  bare  payment, 
without  words  or  acts  to  indicate  its  character,  would  not  be  con- 
strued as  carrying  with  it  an  acknowledgment  that  more  was  due 
and  would  be  paid. 

If  a  debtor  owes  several  debts,  and  pays  a  sum  of  money,  he  has 
the  right  of  appropriating  that  money  to  one  debt  or  another  as  he 
pleases.  If  he  pays  it  without  indicating  his  own  appropriation,  the 
general  rule  is,  that  the  creditor  who  receives  the  money  may  ap- 
propriate it  as  he  will.  There  is,  however,  this  exception.  If  there 
be  two  or  more  debts,  some  of  which  are  barred  by  the  statute,  and 
others  are  not  barred  by  it,  the  creditor  cannot  appropriate  the  pay- 
ment to  a  debt  that  is  barred,  for  the  purpose  of  taking  it  out  of  the 
statute  by  such  part-payment. 


SECTION  V. 

SOME    STATUTORY    EXCEPTIONS. 

THE  original  English  statute,  which  ours  is  taken  from,  also  pro- 
vides, that  if  a  creditor,  at  the  time  when  the  cause  of  action  accrues, 
is  a  minor,  or  a  married  woman,  or  not  of  sound  mind,  or  imprisoned, 
or  beyond  the  seas,  the  six  years  do  not  begin  to  run  ;  and  he  may 
bring  his  action  at  any  time  within  six  years  after  such  disability 
ceases  to  exist.  And  also,  if  any  person  against  whom  there  shall  be 
a  cause  of  action,  shall,  when  such  cause  accrues  be  beyond  the  seas 
(which  means  out  of  the  country,  and  here,  out  of  the  State),  the 
action  may  be  brought  at  any  time  within  six  years  after  his  return. 
Similar  exceptions  and  disabilities  are  usually  contained  in  our  own 
statutes. 


WHEN  THE  PEEIOD  OF  LIMITATION  BEGINS.  267 

The  effect  of  these  is,  that  the  disability  must  exist  when  the  debt 
accrued ;  and  then,  so  long  as  the  disability  continues  to  exist,  the 
statute  does  not  take  effect.  But  it  is  a  general  rule,  that,  if  the 
six  years  begin  to  run,  they  go  on  without  any  interruption  or  sus- 
pension from  any  subsequent  disability.  Thus,  if  a  creditor  be  of 
sound  mind,  or  a  debtor  be  at  home,  when  the  debt  accrues,  and 
one  month  afterwards  the  creditor  becomes  insane,  or  the  debtor 
leaves  the  country,  nevertheless  the  six  years  go  on,  and  after  the 
end  of  that  time  no  action  can  be  commenced  for  the  debt.  Or  if 
the  disability  exists  when  the  debt  accrues,  and  some  months  after- 
wards ceases,  so  that  the  six  years  begin  to  run  when  it  ceases,  and 
afterwards  the  disability  comes  again,  it  does  not  interrupt  the  six 
years. 

If,  when  a  debt  is  due,  the  debtor  is  out  of  the  State,  the  six  years 
do  not  begin  to  run.  If  afterwards  he  returns  to  the  State,  they 
then  begin  to  run ;  and,  having  begun,  they  continue  to  run, 
although  he  goes  out  of  the  State  again,  and  returns  no  more. 

In  this  country,  a  rational  construction  has  been  given  to  the 
disability  of  being  out  of  the  State,  and  its  removal ;  and  it  is  not 
understood  to  be  terminated  merely  by  a  return  of  the  debtor  for  a 
few  days,  if  during  those  days  he  was  not  within  reach.  If,  how- 
ever, the  creditor  knew  that  he  had  returned,  or  might  have  known 
it  by  the  exercise  of  reasonable  care  and  diligence,  soon  enough  to 
have  profited  by  it,  this  removal  of  the  disability  brings  the  statute 
into  operation,  although  the  return  was  for  a  short  time  only. 


SECTION  VL 
WHEN  THE  PERIOD  OF  LIMITATION  BEGINS. 

IT  is  sometimes  a  question  from  what  point  of  time  the  six  years 
arc  to  be  counted.  And  the  general  rule  is,  that  they  begin  when 
the  action  might  have  been  commenced.  If  a  credit  is  given,  this 
period  does  not  begin  until  the  credit  has  expired.  If  a  note  on 
time  be  given,  the  six  years  do  not  begin  until  the  time  has  expired, 
including  the  additional  three  days  of  grace ;  if  a  bill  of  exchange 

19 


268  LIMITATIONS. 

be  given,  payable  at  sight,  then  the  six  years  begin  after  present- 
ment and  demand ;  but  if  a  note  be  payable  on  demand,  or  money 
is  payable  on  demand,  then  the  limitation  begins  at  once,  because 
there  may  be  an  action  at  once.  If  there  can  be  no  action  until  a 
previous  demand,  the  limitation  begins  as  soon  as  the  demand  is 
made.  If  money  be  payable  on  the  happening  of  any  event,  then 
the  limitation  begins  after  that  event  has  happened.  If  several 
successive  credits  are  given,  as  if  a  note  is  given  which  is  to  be 
renewed ;  or  if  a  credit  is  given,  and  then  a  note  is  to  be  given ;  or 
if  the  credit  is  longer  or  shorter,  at  the  purchaser's  option,  as  if  it 
be  agreed  that  a  note  shall  be  given  at  two  or  four  months,  —  then 
the  six  years  begin  when  the  whole  credit  or  the  longer  credit  has 
expired. 


SECTION  vn. 

THE  STATUTE  DOES  NOT  AFFECT  COIXATERAL  SECURITY. 

IT  is  important  to  remember  that  the  Statute  of  Limitations  does 
not  avoid  or  cancel  the  debt,  but  only  provides  that  "  no  action 
shall  be  maintained  upon  it "  after  a  given  time.  Therefore,  it  does 
not  follow  that  no  right  can  be  sustained  by  the  debt,  although  the 
debt  cannot  be  sued.  Thus,  if  one  who  holds  a  common  note  of 
hand,  on  which  there  is  a  mortgage  or  pledge  of  real  or  of  personal 
property,  without  valid  excuse  neglects  to  sue  the  note  for  more 
than  six  years,  he  can  never  bring  an  action  upon  that  note  ;  but 
the  pledge  or  mortgage  is  as  valid  and  effectual  as  it  was  before  ; 
and,  as  far  as  it  goes,  his  debt  is  secure ;  and  for  the  purpose  of 
realizing  this  security,  by  foreclosing  a  mortgage,  for  example,  he 
may  have  whatever  process  is  necessary,  although  he  cannot  sue  the 
note  itself.  And  the  debtor  cannot  redeem  the  property  pledged  or 
mortgaged  except  by  payment  of  the  debt. 


WHAT  INTEREST  IS,   AND  WHEN  IT  IS  DUB.  269 

CHAPTER    XXII. 

INTEREST    Ajyi>    TJSTJItY. 


SECTION    I. 
WHAT  INTEREST  IS,  AND  WHEN   IT  IS  DUE. 

INTEREST  means  a  payment  of  money  for  the  use  of  money.  In 
most  civilized  countries  the  law  regulates  this  ;  that  is,  it  declares 
how  much  money  may  be  paid  or  received  for  the  use  of  money  ; 
and  this  is  called  legal  interest ;  and  if  more  is  paid  or  agreed  to  be 
paid  than  is  thus  allowed,  it  is  called  usurious  interest.  By  interest 
is  commonly  meant  legal  interest ;  and  by  usury,  usurious  interest. 

Interest  may  be  due,  and  may  be  demanded  by  a  creditor,  on 
either  of  two  grounds.  One,  a  bargain  to  that  effect ;  the  other,  by 
way  of  damages  for  withholding  money  that  is  due.  Indeed,  it  may 
be  considered  as  now  the  settled  rule,  that  wherever  money  is  with- 
held which  is  certainly  due,  the  debtor  is  to  be  regarded  as  having 
promised  legal  interest  for  the  delay.  And  upon  this  implication, 
as  on  most  others,  the  usage  of  trade,  and  the  customary  course  of 
dealings  between  the  parties,  would  have  great  influence. 

Thus,  in  New  York,  it  was  held,  that,  where  it  was  known  to  one 
party  that  it  was  the  uniform  custom  of  the  other  to  charge  interest 
upon  articles  sold  or  manufactured  by  him  after  a  certain  time,  the 
latter  was  allowed  to  charge  interest  accordingly. 

In  general,  we  may  say  that  interest  is  allowed  by  law  as  follows . 
on  a  debt  due  by  judgment  of  court,  it  is  allowed  from  the  rendition 
of  judgment;  and  on  an  account  that  has  been  liquidated,  or 
settled,  from  the  day  of  the  liquidation  ;  for  goods  sold,  from  the 
time  of  the  sale,  if  there  be  no  credit,  and  if  there  be,  then  from 
the  day  when  the  credit  expires ;  for  rent,  from  the  time  that  it  is 
due,  and  this  even  if  the  rent  is  payable  otherwise  than  in  money, 
but  is  not  so  paid ;  for  money  paid  for  another  or  lent  to  another, 
from  the  payment  or  loan. 


270  INTEREST  AND  USURY. 

Interest  is  not  generally  recoverable  upon  claims  for  unliquidated 
damages,  nor  in  actions  founded  on  tort.  By  unliquidated  damages 
is  meant  damages  not  agreed  on,  and  of  an  uncertain  amount,  and 
which  the  jury  must  determine.  By  torts  is  meant  wrongs,  or 
injuries  inflicted.  But  although  interest  cannot  be  given  under 
that  name,  in  actions  of  this  sort,  juries  are  sometimes  at  liberty  to 
consider  it  in  estimating  the  damages. 

It  sometimes  happens  that  money  is  due,  but  not  now  payable ; 
and  then  the  interest  does  not  begin  until  the  money  is  payable. 
As  if  a  note  be  on  demand,  the  money  is  always  due,  but  it  is  not 
payable  until  demand ;  and  therefore  is  not  on  interest  until 
demand.  But  a  note  payable  at  a  certain  time,  or  after  a  certain 
period,  carries  interest  from  that  time,  whether  it  be  demanded  or 
not. 

The  laws  which  regulate  interest  and  prohibit  usury  are  very 
various,  and  are  not  perhaps  precisely  the  same  in  any  two  of  our 
States.  Formerly,  usury  was  looked  upon  as  so  great  an  offence, 
that  the  whole  debt  was  forfeited  thereby.  The  law  now,  however, 
is  —  generally,  at  least  —  much  more  lenient.  The  theory  that 
money  is  like  any  merchandise,  worth  what  it  will  bring  and  no 
more,  and  that  its  value  should  be  left  to  fix  itself  in  a  free  market, 
is  certainly  gaining  ground.  In  many  States  there  are  frequent 
efforts  so  to  change  the  statutes  of  usury  that  parties  may  make  any 
bargain  for  the  use  of  money  which  suits  them ;  but  when  they 
make  no  bargain,  the  law  shall  say  what  is  legal  interest.  And, 
generally,  the  forfeiture  is  now  much  less  than  the  whole  debt. 

At  the  close  of  this  chapter  will  be  found  a  statement  of  the  usury 
laws  of  the  States. 

There  is  no  especial  form  or  expression  necessary  to  make  a 
bargain  usurious.  It  is  enough  for  this  purpose  if  there  be  a  suo- 
stantial  payment,  or  promise  of  payment,  of  more  than  the  law 
allows,  either  for  the  iise  of  money  lent,  or  for  the  forbearance  of 
money  due  and  payable.  One  thing,  however,  is  certain :  there 
must  be  a  usurious  intention,  or  there  is  no  usury.  That  is,  if  one 
miscalculates,  and  so  receives  a  promise  for  more  than  legal  interest, 
the  error  may  be  corrected,  the  excess  waived,  and  the  whole  legal 
interest  claimed.  But  if  one  makes  a  bargain  for  more  than  legal 


"WHAT  INTEEEST  IS,   AND   WHEN  IT  IS  DUE.  271 

interest,  believing  that  he  has  a  right  to  make  such  a  bargain,  or 
that  the  law  gives  him  all  that  he  claims,  this  is  a  mistake  of  law, 
and  does  not  save  the  party  from  the  effect  of  usury. 

It  may  be  well  to  remark,  that  the  law  makes  a  very  wide  dis- 
tinction between  a  mistake  of  fact  and  a  mistake  of  law.  Generally, 
it  will  not  permit  a  party  to  be  hurt  by  a  mistake  of  fact ;  but  it 
seldom  suffers  any  one  to  excuse  himself  by  a  mistake  of  law,  because 
it  holds  that  everybody  should  know  the  law,  and  because  it  would 
be  dangerous  to  permit  ignorance  of  the  law  to  operate  for  any  one's 
benefit. 

The  question  has  been  much  discussed,  whether  the  use  of  the 
common  tables  which  are  calculated  on  the  supposition  that  a  year 
consists  of  360  days,  is  usurious.  In  New  York,  it  has  been  held  that 
it  is  ;  but  in  Massachusetts,  and  some  other  States,  it  is  held  that  the 
use  of  such  tables  does  not  render  the  transaction  usurious.  We 
think  this  latter  the  better  ojj|nion. 

If  a  debtor  requests  time,  and  promises  to  pay  for  the  forbearance 
legal  interest,  and  as  much  more  as  the  creditor  shall  be  obliged  to 
pay  for  the  same  money,  this  is  not  a  usurious  contract.  And,  even 
if  usurious  interest  be  actually  taken,  this,  although  strong  evidence 
of  an  original  usurious  bargain  and  intent,  is  not  conclusive,  but 
may  be  rebutted  by  adequate  proof  or  explanation. 

When  a  statute  provides  that  a  usurious  contract  is  wholly  void, 
such  a  contract  cannot  become  good  afterwards ;  and  therefore  a 
note  which  is  usurious,  if  it  be  therefore  void  by  law  in  its  inception, 
is  not  valid  in  the  hands  of  an  innocent  indorsee.  But  it  is  other- 
wise where  the  statute  does  not  declare  the  contract  void  on  account 
of  the  usury.  If  a  note,  or  any  securities  for  a  usurious  bargain, 
be  delivered  up  by  the  creditor  and  cancelled,  and  the  debtor  there- 
upon promises  *to  pay  the  original  debt  and  lawful  interest,  this 
promise  is  valid. 

New  securities  for  old  ones  which  are  tainted  with  usury  are 
equally  void  with  the  old  ones,  or  subject  to  the  same  defence.  Not 
so,  however,  if  the  usurious  part  of  the  original  securities  be  ex- 
punged, and  not  included  in  the  new ;  or  if  the  new  ones  are  given 
to  third  parties,  who  were  wholly  innocent  of  the  original  usurious 
transaction.  And  if  a  debtor  suffers  his  usurious  debt  to  be  sued, 


272  INTEKEST  A3TD  USURY. 

and  a  judgment  recovered  against  him  for  the  whole  amount,  it  ia 
then  too  late  for  him  to  take  any  advantage  of  the  usury. 

So,  if  land  or  goods  be  mortgaged  to  secure  a  usurious  debt,  arid 
afterwards  conveyed  to  an  innocent  party,  subject  to  such  mortgage, 
the  latter  cannot  set  up  the  defence  of  usury,  and  thereby  defeat  an 
action  to  enforce  the  mortgage. 

Usurers  resort  to  many  devices  to  conceal  their  usury  ;  and  some- 
times it  is  very  difficult  for  the  law  to  reach  and  punish  this  offence. 
A  common  method  is  for  the  lender  of  money  to  sell  some  chattel, 
or  a  parcel  of  goods,  at  a  high  price,  the  borrower  paying  this  price 
in  part  as  a  premium  for  the  loan.  In- England,  it  would  seem  from 
the  reports  to  be  quite  common  for  one  who  discounts  a  note  to  do 
this  nominally  at  legal  rates,  but  to  furnish  a  part  of  the  amount  in 
goods  at  a  very  high  valuation.  In  all  cases  of  this  kind,  or  rather 
in  all  cases  where  questions  of  this  kind  arise,  the  court  endeavors 
to  ascertain  the  real  character  of  the  transaction.  Such  a  transac- 
tion is  always  suspicious,  for  the  obvious  reason  that  one  who  wants 
to  borrow  money  is  not  very  likely  to  desire  at  the  same  time  to  buy 
goods  at  a  high  price.  But  the  jury  decide  all  questions  of  this 
kind ;  and  it  is  their  duty  to  judge  of  the  actual  intention  of  the 
parties  from  all  the  evidence  offered.  If  that  intention  is  substan- 
tially that  one  should  loan  his  money  to  another,  who  shall  therefor, 
in  any  manner  whatever,  pay  to  the  lender  more  than  legal  interest, 
it  is  a  case  of  usury.  "  Where  the  real  truth  is  a  loan  of  money," 
said  Lord  Mansfield,  "  the  wit  of  man  cannot  find  a  shift  to  take  it 
out  of  the  statute."  If  this  great  judge  meant  only  that,  whenever 
legal  evidence  shows  the  transaction  to  be  a  usurious  loan,  the  law 
pays  no  respect  whatever  to  any  pretence  or  disguise,  this  is  certainly 
true.  But  the  wit  of  man  does  undoubtedly  devise  many  "  shifts," 
which  the  law  cannot  detect.  There  seems  to  be  a  'general  rule  in 
these  cases  in  reference  to  the  burden  of  proof ;  the  borrower  must 
first  show  that  he  took  the  goods  on  compulsion ;  and  then  it  is  for 
the  lender  to  prove  that  no  more  than  their  actual  value  was  re- 
ceived or  charged  for  them. 

If  one  should  borrow  stock  at  a  valuation  much  above  the  market 
rate,  and  agree  to  pay  interest  on  this  value  for  the  use  of  the  stock 
to  sell  or  pledge,  this  would  be  usurious. 


A  CHAEGE  FOB  BISK  OB  FOB  SEBYICE.  273 

Oiie  may  lend  bis  stock,  and  may,  without  usury,  give  the  bor- 
rower the  option  to  replace  the  stock,  or  to  pay  for  it  at  even  a  high 
value,  with  interest.  But,  if  he  reserves  this  option  to  himself,  the 
bargain  is  usurious,  because  it  gives  the  lender  the  right  to  claim 
more  than  legal  interest.  So,  the  lender  may  reserve  either  the 
dividends  or  the  interest,  if  he  elects  at  the  time  of  the  loan  ;  but  he 
cannot  reserve  the  right  of  electing  at  a  future  time,  when  he  shall 
know  what  the  dividends  are. 

A  contract  may  seem  to  be  two,  and  yet  be  but  one,  if  the  seeming 
two  are  but  parts  of  a  whole.  Thus,  if  A  borrows  one  thousand 
dollars,  aud  gives  a  note  promising  to  pay  legal  interest  for  it,  and 
then  gives  another  note  for  (or  otherwise  promises  to  pay)  a  further 
sum,  in  fact  for  no  consideration  but  the  loan,  this  is  all  one  trans- 
action, and  it  constitutes  a  usurious  contract. 

But  if  there  be  a  loan  on  legal  terms,  with  no  promise  or  obligation 
on  the  part  of  the  borrower  to  pay  any  more,  this  might  not  be 
invalidated  by  a  mere  understanding  that  the  borrower  should, 
when  the  money  was  paid  by  him,  make  a  present  to  the  lender  for 
the  accommodation.  And  if,  after  a  payment  has  been  made,  which 
discharged  all  legal  obligation,  the  payer  voluntarily  adds  a  gift,  this 
would  not  be  usurious.  But  in  every  such  case  the  question  for  a 
jury  is,  What  was  this  additional  transfer  of  money,  in  fact ;  was  it  a 
voluntary  gift,  or  was  it  the  payment  of  a  debt  ?  If  an  honest  gift, 
it  was  not  usurious  ;  if  a  payment,  it  was  usurious. 

A  foreign  contract,  valid  and  lawful  where  made,  may  be  enforced 
in  a  State  in  which  such  a  contract,  if  made  there,  would  be  usurious. 
But  if  usurious  where  it  was  made,  and,  by  reason  of  that  usury, 
wholly  void  in  that  State,  if  it  is  put  in  suit  in  another  State  where 
the  penalty  for  usury  is  less,  it  cannot  be  enforced  under  this  miti- 
gated penalty;  but  it  is  wholly  void  there  also. 


SECTION  n. 

A   CHARGE   FOR    RISK    OR    FOR   SERVICE. 

IT  is  undoubtedly  lawful  for  a  lender  to  charge  an  extra  price  for 
the  risk  he  incurs,  provided  that  risk  be  perfectly  distinct  and 


274  INTEBEST  AND  USUKY. 

different  from  the  merely  personal  risk  of  'the  debtor's  being  unable 
to  pay.     If  any  thing  is  paid  for  this  last  risk,  it  is  certainly  usury. 

So,  one  may  charge  for  services  rendered,  for  brokerage,  or  for 
rate  of  exchange,  and  may  even  cause  a  domestic  loan  or  discount  to 
be  actually  converted  into  a  foreign  one,  so  as  to  charge  the  ex- 
change ;  and  this  would  not  be  usurious.  But  here,  as  before,  and 
indeed  throughout  the  law  of  usury,  it  is  necessary  to  remember 
that  the  actual  intention,  and  not  the  apparent  purpose  or  form  of 
the  transaction,  must  determine  its  character.  So,  if  one  lends 
money  to  be  used  in  business,  and  lends  it  upon  such  terms  that  he 
becomes  a  partner  in  fact  with  those  who  use  it,  taking  his  share  of 
the  profits,  and  becoming  liable  for  the  losses,  this  is  not  usurious. 

So,  if  one  enters  into  a  partnership,  and  provides  money  for  its 
business,  and  the  other  party  is  to  bear  all  the  losses,  and  also  to 
pay  the  capitalist  more  than  legal  interest  as  his  share  of  the  profits, 
this  is  not  usurious,  because  there  is  no  loan,  if  there  be  in  fact  a 
partnership ;  for  then  there  is  a  very  important  risk,  as  he  becomes 
liable  for  all  the  debts  of  the  partnership. 

The  banks  always  get  more  than  legal  interest  by  their  way  of 
discounting  notes  and  deducting  the  whole  interest  from  the  amount 
they  give.  This  is  perfectly  obvious  if  we  take  an  extreme  case ;  as 
if  a  bank  discounted  a  note  of  a  thousand  dollars  at  fifteen  years,  in 
Massachusetts,  the  bank  would  discount  the  interest  of  all  the  fif- 
teen years ;  the  borrower  would  receive  one  hundred  dollars,  and 
at  the  end  of  fifteen  years  he  would  pay  back  one  thousand  dollars, 
which  is  equivalent  to  paying  nine  hundred  dollars  for  the  use  of 
one  hundred  for  fifteen  years,  whereas  the  legal  interest  would  be 
but  ninety  dollars.  But  this  method  is  now  established  by  usage 
and  sanctioned  by  law.  It  should,  however,  be  confined  to  dis- 
counts of  negotiable  paper,  not  having  a  very  long  time  to  run 
For  the  rule  is  founded  upon  usage,  and  the  usage  goes  no  further. 


SECTION  in. 

THE  SALE  OF  NOTES. 

THERE  are,  perhaps,  no  questions  in  relation  to  interest  and  usury 
of  more  importance  than  those  which  arise  from  the  sale  of  notes 


THE   SALE  OF  NOTES.  275 

or  other  securities.  In  the  first  place,  there  is  no  doubt  whatever 
that  the  owner  of  a  note  has  as  good  a  right  to  sell  it  for  the  most 
he  can  get,  as  he  has  to  sell  any  goods  or  wares  which  he  owns. 
There  is  here  no  question  of  usury,  because  there  is  no  loan  of 
money,  nor  forbearance  of  debt.  But,  on  the  other  hand,  it  is  quite 
as  certain  that  if  any  person  makes  his  own  note,  and  sells  that  for 
what  he  can  get,  this,  while  in  appearance  the  sale  of  a  note,  is  in 
fact  the  giving  of  a  note  for  money.  It  is  a  loan  and  a  borrowing, 
and  nothing  else.  And  if  the  apparent  sale  be  for  such  a  price  that 
the  seller  pays  more  than  legal  interest,  or,  in  other  words,  if  the 
note  bear  interest  and  is  sold  for  less  than  its  face,  or  is  not  on 
interest,  and  more  than  interest  is  discounted,  it  is  a  usunous  trans- 
action. Supposing  these  two  rules  to  be  settled,  the  question  in 
each  case  is,  under  which  of  them  does  that  case  come,  or  to  which 
of  them  does  it  draw  nearest. 

We  are  not  aware  of  any  general  principle  so  likely  to  be  of  use 
in  determining  these  questions  as  this :  if  the  seller  of  a  note 
acquired  it  by  purchase,  or  if  it  is  his  for  money  advanced  or  lent 
by  him  to  its  full  amount,  he  may  sell  it  for  what  he  can  get ;  but 
if  he  be  the  maker  of  the  note,  or  the  agent  of  the  maker,  and 
receives  for  the  note  less  than  would  be  paid  him  if  only  a  lawful 
discount  were  made,  it  is  a  usurious  loan.  In  other  words,  the  first 
holder  of  a  note  (and  the  maker  of  a  note  is  not  and  cannot  be  its 
first  holder)  must  pay  to  the  maker  the  face  of  the  note,  or  its  full 
amount.  And  after  paying  this,  he  may  sell  it,  and  any  subsequent 
purchaser  may  sell  it,  as  merchandise.  The  same  rule  must  apply 
to  corporations,  and  all  other  bodies  or  persons  who  issue  their  notes 
or  bonds  on  interest.  If  sold  by  brokers  for  them,  for  less  than  the 
full  amount,  it  is  usurious.  Nor  can  such  notes  come  into  the 
market  free  from  the  taint  and  the  defence  of  usury,  unless  the  first 
party  who  holds  them  pays  for  them  their  full  value. 

But  then  comes  another  question.  If  a  note  be  offered  for  sale, 
and  be  sold  for  less  than  its  face,  and  the  purchaser  supposes  him- 
self to  buy  it  from  an  actual  holder  and  not  from  the  maker,  can 
the  maker  interpose  the  defence  that  it  was  actually  usurious,  on 
the  ground  that  the  seller  was  only  his  agent?  I  should  say 
that  he  could  not;  that  there  can  be  no  usury  unless  this  is 


276  INTEREST  AND  USURY. 

intended ;  and  that  the  guilty  intention  of  one  party  cannot  affect 
another  party  who  was  innocent. 

I  should  say,  also,  that  one  who,  having  no  interest  in  a  note, 
indorses  or  guarantees  it  for  a  certain  premium,  will  be  liable  for  its 
face ;  he  does  not  now  add  his  credit  to  the  value  of  his  property 
and  sell  both  together,  as  where  he  indorses  a  note  which  he  holds 
himself,  but  sells  his  credit  alone.  This  transaction  I  should  not 
think  usurious.  And  if  it  was  open  to  no  other  defence,  as  fraud, 
for  example,  and  was  in  fact  what  it  purported  to  be,  and  not  a 
mere  cover  for  a  usurious  loan,  we  know  no  good  reason  why  such 
indorser  or  guarantor  should  not  be  held  liable  to  the  full  amount 
of  his  promise. 

SECTION   IV. 

COMPOUND  ZNTEREST. 

COMPOUND  interest  is  sometimes  said  to  be  usurious  ;  but  it  is  not 
so ;  and  even  those  cases  which  speak  of  it  as  "  savoring  of  usury  " 
may  be  thought  to  go  too  far,  unless  every  hard  bargain  for  money 
is  usurious.  As  the  authorities  now  stand,  however,  a  contract  or 
promise  to  pay  money  with  compound  interest  cannot,  generally,  be 
enforced.  On  the  other  hand,  it  is  neither  wholly  void,  nor 
attended  with  any  penalty,  as  it  would  be  if  usurious ;  but  is  valid 
for  the  principal  and  simple  interest  only. 

Nevertheless,  compound  interest  is  sometimes  recognized  as  due 
by  courts  of  law,  as  well  as  of  equity  ;  and  sometimes,  too,  by  its 
own  name.  Thus,  if  a  trustee  be  proved  to  have  had  the  money  of 
the  party  for  whom  he  is  trustee  (who  is  called  in  law  his  cestui  qw 
trust)  for  a  long  time,  without  accounting  for  it,  he  may  be  charged 
with  the  whole  amount,  reckoned  at  compound  interest,  so  as  to 
cover  his  unlawful  profits.  If  compound  interest  has  accrued  under 
a  bargain  for  it,  and  been  actually  paid,  it  cannot  be  recovered  back, 
as  money  usuriously  paid  may  be.  And  if  accounts  are  agreed  to 
be  settled  by  annual  rests,  which  is  in  fact  compound  interest,  or 
are  actually  settled  so  in  good  faith,  the  law  sanctions  this.  Some- 
times, in  cases  of  disputed  accounts,  the  courts  direct  this  method 
of  settlement. 


ABSTEACTS  OP  THE  USUEY  LAWS  OF  THE  STATES.          277 

Where  money  due  on  interest  has  been  paid  by  sundry  instal- 
ments, the  mode  of  adjusting  the  amount  which  has  the  best 
authority,  and  the  prevailing  usage  in  its  favor,  seems  to  be  this : 
Compute  the  interest  due  on  the  principal  sum  to  the  time  when  a 
payment,  either  alone  or  in  conjunction  with  preceding  payments, 
shall  equal  or  exceed  the  interest  due  on  the  principal.  Deduct  this 
sum,  and  upon  the  balance  cast  interest  as  before,  until  a  payment 
or  payments  equal  the  interest  due  ;  then  deduct  again,  and  so  on. 

Abstracts  of  tJie  Usury  Laws  of  the  States. 

These  laws  are  stated  from  the  latest  information  ;  but  ore  constantly  undergoing  change,  and  are  Kkely  to  be 
so,  until  restrictions  upon  interest  are  abolished,  as  they  now  are  in  some  States. 

Alabama.  Legal  interest,  eight  per  cent.  Usurious  interest  can  not  be  recov- 
ered, and  if  paid,  is  to  be  deducted  from  the  principal. 

Arkansas.  Legal  interest,  six  per  cent.  Parties  may  agree,  by  contract  writ- 
ten or  verbal,  for  whatever  amount  they  will. 

California.  Legal  interest,  seven  per  cent.  Parties  may  agree  on  any  rate  of 
interest  in  writing. 

Connecticut.     Legal  interest,  six  per  cent     Person  receiving  more  shall  forfeit 
interest  taken  ;  half  to  the  prosecutor,  half  to  the  State  Treasury.     Contracts  to 
pay  taxes  and  insurance  on  sums  loaned  in  addition  to  the  legal  interest  are  valid- 
District  of  Columbia.     Legal  interest,  six  per  cent.     Ten  per  cent,  may  be 
paid  on  agreement.     Any  excess  forfeits  the  whole  interest. 

Delaware.  Legal  interest,  six  per  cent.  Penalty  for  taking  more, — forfeiture 
of  the  money  lent ;  half  to  the  prosecutor,  half  to  the  State 

Florida.    Legal  interest,  six  per  ct    But  the  usury  laws  are  expressly  abolished. 
Georgia.     Legal  interest,  seven  per  cent.    More  than  legal  interest  can  not  be  re- 
covered.    All  titles  to  property  made  as  part  of  a  usurious  contract  are  void. 

Illinois.  Legal  interest,  six  per  cent.  Parties  may  agree  upon  ten  per  cent,  orally 
or  in  writing.  If  more  is  agreed  on  or  is  taken,  only  the  principal  can  be  recovered. 

Indiana.  Legal  interest,  six  per  cent.  Ten  per  cent,  may  be  agreed  upon  in 
writing.  It  may  be  taken  in  advance.  Excess  can  not  be  recovered,  and,  if  paid, 
shall  be  considered  as  paid  on  account  of  the  principal. 

Iowa.  Legal  interest,  six  per  cent.  Parties  may  agree  in  writing  for  ten  per 
cent.  If  contract  be  for  more,  the  creditor  recovers  only  the  principal,  and  interest 
at  ten  per  cent,  is  forfeited  to  the  State. 

Kansas.  Legal  interest,  seven  per  cent.  Parties  may  stipulate  for  any  rate  not 
exceeding  twelve  per  cent.  Contract  for  more  forfeits  all  interest.  Usurious  pay- 
ments held  to  be  made  on  account  of  principal. 


I 


278  INTEREST  AND    TJSUHY. 

Kentucky.  Legal  interest,  six  per  cent  Extra  interest  forfeited ;  if  paid,  may 
be  recovered  back. 

Louisiana.  Legal  interest,  five  per  cent.  Conventional  interest  shall  in  no 
case  exceed  eight  per  cent.,  under  penalty  of  forfeiture  of  entire  interest.  Owner 
of  negotiable  paper  discounted  for  more  than  eight  per  cent,  may  recover  eight 
per  cent.  Usurious  interest  may  be  recovered  back,  but  must  be  sued  for  within 
twelve  months. 

Maine.  Legal  interest,  six  per  cent. ;  but  not  to  apply  to  letting  cattle,  or  other 
similar  contracts  in  practice  among  farmers;  nor  to  maritime  contracts,  as  bot- 
tomry or  insurance  ;  and  "not  to  course  of  exchange  in  practice  among  merchants. 
Excessive  interest  not  recoverable,  and,  if  paid,  may  be  recovered  back,  if  sued  for 
within  a  year. 

Maryland.     Legal  interest,  six  per  cent.     Excess  forfeited. 

Massachusetts.  Legal  interest,  six  per  ct.  Any  rate  of  interest  or  discount  may 
be  made  by  agreement ;  but  if  greater  than  six  per  cent.,  it  must  be  in  writing. 

Michigan.  Legal  interest,  seven  per  cent.  Parties  may  agree  in  writing  upon 
any  rate  not  exceeding  ten  per  cent.  If  more  interest  is  agreed  for,  only  legal  in- 
terest recoverable. 

Minnesota.  Legal  interest,  seven  per  cent.  Parties  may  agree  in  writing  for 
more,  but  agreement  not  valid  for  any  excess  over  twelve  per  cent.  Interest  on 
judgments,  six  per  cent. 

Mississippi.  Legal  interest,  six  per  cent.  Parties  may  agree  in  writing  for  ten 
per  cent.  If  more  be  taken  or  agreed  for,  the  excess  is  forfeited. 

Missouri.  Legal  interest,  six  per  cent. ;  but  parties  may  agree  in  writing  for  any 
rate  not  to  exceed  ten  per  cent  If  more  be  taken  or  agreed  for,  the  creditor  re- 
covers only  the  principal,  and  interest  at  ten  per  cent  is  forfeited  to  the  State. 
Parties  may  contract  in  writing  for  the  payment  of  interest  upon  interest ;  but  the 
interest  shall  not  be  compounded  oftener  than  once  a  year. 

Nebraska.  Legal  interest,  ten  per  cent.  Parties  may  agree  on  any  rate  not 
exceeding  fifteen  per  cent.  On  proof  of  illegal  interest,  plaintiff  shall  recover  only 
principal. 

Nevada.  Legal  interest,  ten  per  cent.  But  parties  may  agree  in  writing  for 
any  rate. 

New  Hampshire.  Legal  interest,  six  per  cent.  A  person  receiving  more  for- 
feits threefold  the  excess ;  but  contracts  are  not  invalidated  by  securing  or  taking 
more.  Exceptions  as  to  contracts  of  farmers  and  merchants  as  in  Maine. 

New  Jersey.  Legal  interest,  seven  per  cent.  ;  on  usurious  contract,  principa 
only  can  be  recovered. 

N.6W  York.  Legal  interest,  seven  per  cent.  A  contract  for  more  than  legal  in- 
terest is  wholly  void.  If  more  than  legal  interest  is  paid,  it  may  be  recovered  back 
within  a  year  by  payer,  or  within  the  next  three  years  by  the  overseers  of  the  poor. 

North  Carolina.     Legal  interest,  six  per  cent.     Eight  per  cent,  may  be  recov- 


BANKRUPTCY.  279 

ered  for  loan  of  money  by  written  agreement.  On  usurious  contracts  no  interest 
is  recoverable. 

Ohio.  Legal  interest,  six  per  cent.  Any  rate  not  exceeding  eight  per  cent,  may 
be  agreed  upon  in  writing ;  excess  can  not  be  recovered. 

Oregon.  Legal  interest,  ten  per  cent.  Parties  may  agree  for  one  per  cent,  a 
month.  Usurious  interest  works  a  forfeiture  of  the  principal  and  interest. 

Pennsylvania.  Legal  interest,  six  per  cent.  Excess  can  not  be  recovered.  If 
paid,  may  be  recovered  back  if  sued  for  within  six  months. 

Rhode  Island.   Legal  interest,  six  per  cent.  Any  higher  rate  may  be  agreed  upon. 

South  Carolina.  Legal  interest,  seven  per  cent.  More  than  legal  interest  may 
be  agreed  upon  by  the  parties. 

Tennessee.  Legal  interest,  six  per  cent.  Parties  may  agree  in  writing  for  ten 
per  cent.  If  more  be  charged,  the  whole  interest  is  forfeited,  and  if  paid,  may  be 
recovered  back ;  and  the  creditor  is  liable  to  a  fine  equal  in  amount  to  the  ex- 
cessive interest. 

Texas.  Legal  interest,  eight  per  cent.  Parties  may  agree  in  writing  for  twelve 
per  cent.  If  more  than  this  is  agreed  for,  no  interest  can  be  recovered. 

Vermont.  More  than  six  per  cent,  prohibited ;  and  a  person  paying  more  may 
recover  excess ;  but  this  is  not  to  extend  to  usage  of  farmers  or  merchants,  as  in 
Maine  and  New  Hampshire. 

Virginia.  Legal  interest,  six  per  cent.  All  contracts  for  a  greater  rate  void. 
Excess,  if  paid,  may  be  recovered  back.  The  receiver  is  liable  to  a  fine  of  double 
the  amount  of  the  principal. 

West  Virginia.  Same  as  Virginia ;  but  a  new  code  is  under  consideration, 
which  may  make  a  change  in  the  law  of  usury. 

Wisconsin.  Legal  interest,  seven  per  cent. ;  but  parties  may  agree  upon  a  rate 
not  exceeding  ten  per  cent.  Usurious  contracts  are  void,  and  if  excessive  interest 
be  paid,  treble  the  amount  thereof  may  be  recovered  back. 


CHAPTER   XVIII. 
:e  A.  N  K  n  TJ  i»  T  e  Y. 

THE  Constitution  of  the  United  States  authorizes  Congress  to 
establish  "  uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States."  In  1800,  a  Bankrupt  Law  was  passed,  limited  to 
five  years  ;  but  it  was  repealed  before  it  had  been  in  operation  three 
years.  In  1841,  another  Bankrupt  Law  was  passed,  and  was  re- 
pealed eighteen  months  afterwards.  In  March,  1867,  another 


280  BANKRUPTCY. 

Bankrupt  Law  was  passed :  it  is  entitled  "  An  Act  to  establish  a 
Uniform  System  of  Bankruptcy  throughout  the  United  States."  This 
act  is  in  force  now.  It  is  so  well  adjusted,  and  provides  so  carefully 
that  fraud  shall  be  prevented  and  justice  done  in  all  cases,  and 
seems  to  be  so  generally  useful  and  acceptable,  that  I  think  it  will 
probably  be  permanent,  and,  without  being  repealed,  will  be 
amended  from  time  to  time  as  new  exigencies  arise,  and  as  experi- 
ence shows  the  need  of  new  or  different  provisions.  It  contains 
forty-eight  sections;  and  I  will  now  give  an  abstract  of  all  the 
sections,  excepting  those  of  the  greatest  and  most  frequent  practi- 
cal importance,  and  these  I  give  in  full. 

SECTION  1.  Makes  the  several  District  Courts  of  the  United 
States  Courts  of  Bankruptcy,  with  full  jurisdiction  over  all  cases 
which  come  before  them,  and  arose  within  their  districts. 

SECT.  2.  The  several  Circuit  Courts  of  the  United  States  shall 
/iave  a  general  superintendence  and  jurisdiction  of  all  cases  and 
questions  arising  under  this  act. 

SECT.  3.  Concerns  the  appointment  of  registers  in  bankruptcy, 
the  manner  of  the  appointment,  and  who  they  may  be. 

SECT.  4.  Describes  the  powers  and  duties  of  registers,  and  their 
fees. 

SECT.  5.  Provides  for  the  proceedings  before  the  registers,  the 
removal  of  registers  by  the  judge  of  the  District  Court,  and  the 
filling  of  the  vacancy. 

SECT.  6.  That  the  register  or  the  parties  concerned  may  take 
the  opinion  of  the  judge  of  the  District  Court  in  cases  or  upon  ques- 
tions where  that  is  desired. 

SECT.  7.  Provides  for  the  attendance  of  parties  and  witnesses 
•when  and  where  summoned,  and  for  the  punishment  of  perjury. 

SECTS.  8,  9,  and  10.  Relate  to  appeals  from  the  District  Court  to 
the  Circuit  Court,  and  from  the  Circuit  Court  to  the  Supreme 
Court  if  the  matter  in  dispute  exceeds  $2,000.  And  gives  the 
Supreme  Court  power  to  provide  rules,  orders,  and  forms  for  prac- 
tice under  this  act. 

SECT.  11.  States  how  a  person  wishing  to  be  made  a  bankrupt 
may  proceed,  and  what  he  must  not  do.  This  section  I  give  in 
full. 


ABSTRACTS   OF  THE  LAW  OF  BANKRUPTCY.  281 


Voluntary  Bankruptcy.  —  Commencement  of  Proceedings. 

SECT.  11.  And  be  it  further  enacted,  That  if  any  person  residing  within  the 
jurisdiction  of  the  United  States,  owing  debts  provable  under  this  act  exceeding 
the  amount  of  three  hundred  dollars,  shall  apply  by  petition,  addressed  to  the 
judge  of  the  judicial  district  in  which  such  debtor  has  resided  or  carried  on  busi- 
ness for  the  six  months  next  immediately  preceding  the  tune  of  filing  such  petition, 
or  for  the  longest  period  during  such  six  months,  setting  forth  his  place  of  resi- 
dence, his  inability  to  pay  all  his  debts  in  full,  his  willingness  to  surrender  all  his 
estate  and  effects  for  the  benefit  of  his  creditors,  and  his  desire  to  obtain  the  benefit 
of  this  act,  and  shall  annex  to  his  petition  a  schedule,  verified  by  oath  before  the 
court,  or  before  a  register  in  bankruptcy,  or  before  one  of  the  commissioners  of  the 
circuit  court  of  the  United  States,  containing  a  full  and  true  statement  of  all  his 
debts,  and,  as  far  as  possible,  to  whom  due,  with  the  place  of  residence  of  each 
creditor,  if  known  to  the  debtor,  and,  if  not  known,  the  fact  to  be  so  stated,  and 
the  sum  due  to  each  creditor,  also  the  nature  of  each  debt  or  demand,  whether 
founded  on  written  security,  obligation,  contract,  or  otherwise,  and  also  the  true 
cause  and  consideration  of  such  indebtedness  in  each  case,  and  the  place  where 
such  indebtedness  accrued,  and  a  statement  of  any  existing  mortgage,  pledge,  lien, 
judgment,  or  collateral  or  other  security  given  for  the  payment  of  the  same ;  and 
shall  also  annex  to  his  petition  an  accurate  inventory,  verified  in  like  manner,  of 
all  his  estate,  both  real  and  personal,  assignable  under  this  act,  describing  the 
same,  and  stating  where  it  is  situated,  and  whether  there  are  any,  and,  if  so,  what 
incumbrances  thereon,  the  filing  of  such  petition  shall  be  an  act  of  bankruptcy, 
and  such  petitioner  shall  be  adjudged  a  bankrupt ;  Provided  that  all  citizens  of  the 
United  States,  petitioning  to  be  declared  bankrupt,  shall,  in  filing  such  petition, 
and  before  any  proceedings  thereon,  take  and  subscribe  an  oath  of  allegiance 
and  fidelity  to  the  United  States,  which  oath  shall  be  filed  and  recorded  with 
the  proceedings  in  bankruptcy.  And  the  judge  of  the  district  courts,  or,  if  there 
be  no  opposing  party,  any  register  of  said  court,  to  be  designated  by  the  judge, 
shall  forthwith,  if  he  be  satisfied  that  the  debts  due  from  the  petitioner  exceed 
three  hundred  dollars,  issue  a  warrant,  to  be  signed  by  such  judge  or  register, 
directed  to  the  marshal  of  said  district,  authorizing  him  forthwith,  as  messenger,  to 
publish  notices  in  such  newspapers  as  the  warrant  specifies ;  to  serve  written  or 
printed  notice,  by  mail  or  personally,  on  all  creditors  upon  the  schedule  filed  with 
the  debtor's  petition,  or  whose  names  may  be  given  to  him,  hi  addition,  by  the 
debtor,  and  to  give  such  personal  or  other  notice  to  any  persons  concerned  as  the 
warrant  specifies,  which  notice  shall  state  : 

First,  That  a  warrant  in  bankruptcy  has  been  issued  against  the  estate  of  the 
debtor. 

Second,  That  the  payment  of  any  debts  and  the  delivery  of  any  property 
belonging  to  such  debtor  to  him  or  for  his  use,  and  the  transfer  of  any  property  by 
him,  are  forbidden  by  law. 

Third,  That  a  meeting  of  the  creditors  of  the  debtor,  giving  the  names,  rest- 


282  BANKRUPTCY. 

dences,  and  amounts,  so  far  as  known,  to  prove  their  debts  and  choose  one  or  more 
assignees  of  his  estate,  will  be  held  at  a  court  of  bankruptcy,  to  be  holden  at  a 
time  and  place  designated  in  the  warrant,  not  less  than  ten  nor  more  than  ninety 
days  after  the  issuing  of  the  same. 

SECT.  12.  Provides  for  the  meetings  of  creditors,  called  under 
the  preceding  section. 

SECTS.  13  and  14.  Provide  for  the  election  or  appointment,  the 
duties,  authority,  and  conduct  of  the  assignee;  determine  what 
property  shall  be  exempted,  and  what  property  must  be  transferred 
to  the  assignee.  These  sections  I  give  in  full. 


Assignments  and  Assignees. 

SECT.  13.  And  be  it  further  enacted,  That  the  creditors  shall,  at  the  first  meeting 
held  after  due  notice  from  the  messenger,  in  presence  of  a  register  designated  by 
the  court,  choose  one  or  more  assignees  of  the  estate  of  the  debtor ;  the  choice  to 
be  made  of  the  greater  part  in  value  and  in  number  of  the  creditors  who  have 
proved  their  debts.  If  no  choice  is  made  by  the  creditors  at  said  meeting,  the 
judge,  or,  if  there  be  no  opposing  interest,  the  register,  shall  appoint  one  or  more 
assignees.  If  an  assignee,  so  chosen  or  appointed,  fails  within  five  days  to  express 
in  writing  his  acceptance  of  the  trust,  the  judge  or  register  may  fill  the  vacancy. 
All  elections  or  appointments  of  assignees  shall  be  subject  to  the  approval  of  the 
judge ;  and  when  in  his  judgment  it  is  for  any  cause  needful  or  expedient,  he  may 
appoint  additional  assignees,  or  order  a  new  election.  The  judge  at  any  time 
may,  and,  upon  the  request  in  writing  of  any  creditor  who  has  proved  his  claim, 
shall  require  the  assignee  to  give  good  and  sufficient  bond  to  the  United  States, 
with  a  condition  for  the  faithful  performance  and  discharge  of  his  duties ;  the  bond 
shall  be  approved  by  the  judge  or  register  by  his  indorsement  thereon,  shall  be 
filed  with  the  record  of  the  case,  and  inure  to  the  benefit  of  all  creditors  proving 
their  claims,  and  may  be  prosecuted  in  the  name  and  for  the  benefit  of  any  injured 
party.  If  the  assignee  fails  to  give  the  bond  within  such  time  as  the  judge  orders, 
not  exceeding  ten  days  after  notice  to  him  of  such  order,  the  judge  shall  remove 
him,  and  appoint  another  in  his  place. 

SECT.  14.  And  be  it  further  enacted,  That  as  soon  as  said  assignee  is  appointed 
and  qualified,  the  judge,  or,  where  there  is  no  opposing  interest,  the  register,  shall, 
by  an  instrument  under  his  hand,  assign  and  convey  to  the  assignee  all  the  estate, 
real  and  personal,  of  the  bankrupt,  with  all  his  deeds,  books,  and  papers  relating 
thereto,  and  such  assignment  shall  relate  back  to  the  commencement  of  said  pro- 
ceedings in  bankruptcy,  and  thereupon,  by  operation  of  law,  the  title  to  all  such 
property  and  estate,  both  real  and  personal,  shall  vest  in  said  assignee,  although 


ABSTRACTS   OF  THE  LAW  OF  BANKRUPTCY.  283 

the  same  is  then  attached  on  mesne  process  as  the  property  of  the  debtor,  and  shall 
dissolve  any  such  attachment  made  within  four  months  next  preceding  the  com- 
mencement of  said  proceedings :  Provided,  however,  That  there  shall  be  excepted 
from  the  operation  of  the  provisions  of  this  section  the  necessary  household  and 
kitchen  furniture,  and  such  other  articles  and  necessaries  of  such  bankrupt  as  the 
said  assignee  shall  designate  and  set  apart,  having  reference  in  the  amount  to  the 
family,  condition,  and  circumstances  of  the  bankrupt,  but  altogether  not  to  exceed 
in  value,  in  any  case,  the  sum  of  five  hundred  dollars ;   and  also  the  wearing 
apparel  of  such  bankrupt,  and  that  of  his  wife  and  children,-  and  the  uniform, 
arms,  and  equipments  of  any  person  who  is  or  has  been  a  soldier  in  the  militia  or 
in  the  service  of  the  United  States,  and  such  other  property  as  now  is,  or  hereafter 
shall  be,  exempted  from  attachment  or  seizure,  or  levy  on  execution  by  the  laws 
of  the  United  States,  and  such  other  property  not  included  in  the  foregoing  excep- 
tions as  is  exempted  from  levy  and  sale  upon  execution  or  other  process,  or  order 
of  any  court,  by  the  laws  of  the  State  in  which  the  bankrupt  has  his  domicile  at 
the  time  of  the  commencement  of  the  proceedings  in  bankruptcy,  to  an  amount 
not  exceeding  that  allowed  by  such  State  exemption  laws  in  force  in  the  year 
eighteen  hundred  and  sixty-four.     Provided,  That  the  foregoing  exception  shall 
operate  as  a  limitation  upon  the  conveyance  of  the  property  of  the  bankrupt  to  his: 
assignees,  and  in  no  case  shall  the  property  hereby  excepted  pass  to  the  assignees,. 
or  the  title  of  the  bankrupt  thereto  be  impaired  or  affected  by  any  of  the  pro- 
visions of  this  act ;  and  the  determination  of  the  assignee  in  the  matter  shall,  on 
exception  taken,  be  subject  to  the  final  decision  of  the  said  court :  And  provided, 
further,  That  no  mortgage  of  any  vessel  or  of  any  other  goods  or  chattels,  made  as 
security  for  any  debt  or  debts,  in  good  faith  and  for  present  considerations,  and. 
otherwise  valid,  and  duly  recorded,  pursuant  to  any  statute  of  the  United  States,. 
or  of  any  State,  shall  be  invalidated  or  affected  hereby ;  and  all  the  property  conr 
vcycd  by  the  bankrupt  in  fraud  of  his  creditors ;  all  rights  in  equity,  choses  in 
action,  patents,  and  patent  rights  and  copyrights ;  all  debts  due  him,  or  any  person 
for  his  use,  and  all  liens  and  securities  therefor ;  and  all  his  rights  of  action  for 
property  or  estate,  real  or  personal,  and  for  any  cause  of  action  which  the  bank- 
rupt had  against  any  person  arising  from  contract  or  from  the  unlawful  taking  or 
detention  or  of  injury  to  the  property  of  the  bankrupt;  and  all  his  rights  of 
redeeming  such  property  or  estate,  with  the  like  right,  title,  power,  and  authority 
to  sell,  manage,  dispose  of,  sue  for,  and  recover  or  defend  the  same,  as  the  bank- 
nipt  might  or  could  have  had  if  no  assignment  had  been  made,  shall,  in  virtue  of 
the  adjudication  of  bankruptcy  and  the  appointment  of  his  assignee,  be  at  once 
vested  in  such  assignee ;  and  he  may  sue  for  and  recover  the  said  estate,  debts,  and 
effects,  and  may  prosecute  and  defend  all  suits  at  law  or  in  equity,  pending  at  the 
time  of  the  adjudication  of  bankruptcy,  in  which  such  bankrupt  is  a  party  hi  his 
own  name,  in  the  same  manner  and  with  the  like  effect  as  they  might  have  been 
presented  or  defended  by  such  bankrupt ;  and  a  copy,  duly  certified  by  the  clerk 
of  the  court  under  the  seal  thereof,  of  the  assignment  made  by  the  judge  or  regis- 
ter, as  the  case  may  be,  to  him  as  assignee,  shall  be  conclusive  evidence  of  his 
20 


284  BASTKKUPTCY. 

title  as  such  assignee  to  take,  hold,  sue  for,  and  recover  the  property  of  the  bankrupt, 
as  hereinbefore  mentioned ;  but  no  property  held  by  the  bankrupt  in  trust  shall  pass 
by  such  assignment.  No  person  shall  be  entitled  to  maintain  an  action  against  an 
assignee  hi  bankruptcy  for  any  thing  done  by  him  as  such  assignee,  -without  pre- 
viously giving  him  twenty  days'  notice  of  such  action,  specifying  the  cause  thereof, 
to  the  end  that  such  assignee  may  have  an  opportunity  of  tendering  amends, 
should  he  see  fit  to  do  so.  No  person  shall  be  entitled,  as  against  the  assignee,  to 
•withhold  from  him  possession  of  any  books  of  account  of  the  bankrupt,  or  claim 
any  lien  thereon ;  and  no  suit  in  which  the  assignee  is  a  party  shall  be  abated  by 
his  death  or  removal  from  office,  but  the  same  may  be  prosecuted  and  defended  by 
his  successors,  or  by  the  surviving  or  remaining  assignee,  as  the  case  may  be.  The 
assignee  shall  have  authority,  under  the  order  and  direction  of  the  court,  to  redeem 
or  discharge  any  mortgage  or  conditional  contract,  or  pledge  or  deposit,  or  lien 
upon  any  property,  real  or  personal,  whenever  payable,  and  to  tender  due  perform- 
ance of  the  condition  thereof,  or  to  sell  the  same  subject  to  such  mortgage,  lien,  or 
other  incumbrances.  The  debtor  shall  also,  at  the  request  of  the  assignee,  and  at 
the  expense  of  the  estate,  make  and  execute  any  instruments,  deeds,  and  writings 
•which  may  be  proper,  to  enable  the  assignee  to  possess  himself  fully  of  all  the 
assets  of  the  bankrupt.  The  assignee  shall  immediately  give  notice  of  his  appoint- 
ment by  publication,  at  least  once  a  week  for  three  successive  weeks,  in  such  news- 
papers as  shall,  for  that  purpose,  be  designated  by  the  court,  due  regard  being  had 
to  their  general  circulation  in  the  district  or  in  that  portion  of  the  district  in  which 
the  bankrupt  and  his  creditors  shall  reside,  and  shall,  within  six  months,  cause  the 
assignment  to  him  to  be  recorded  hi  every  registry  of  deeds  or  other  office  withhi 
the  United  States  where  a  conveyance  of  any  lands  owned  by  the  bankrupt  ought 
by  law  to  be  recorded ;  and  the  record  of  such  assignment,  or  a  duly  certified  copy 
thereof,  shall  be  evidence  thereof  in  ah1  courts. 

SECT.  15.  Gives  some  further  direction  to  the  assignee,  as  to 
demanding,  receiving,  and  selling  the  property. 

SECT.  16.  Gives  directions  in  relation  to  suits  by  the  assignee  to 
recover  debts  or  other  effects  assigned  to  him. 

SECT.  17.  Gives  directions  as  to  the  settlement  by  the  assignee 
of  the  estate  of  the  bankrupt ;  and  gives  him  power  to  submit  dis- 
puted demands  against  debtors  to  the  estate,  to  arbitration,  or  to 
compound  and  settle  them. 

SECT.  18.  Provides  for  death,  resignation,  or  removal  of  the 
assignee,  and  filling  the  vacancy ;  and  states  the  general  duties  of 
assignees. 

SECT.  19.  Relates  to  the  debts  of  the  bankrupt  payable  at  the 
time  of  bankruptcy ;  and  also  his  debts  payable  at  a  future  time. 
This  section  I  give  in  full. 


ABSTRACTS  OF  THE  LAW  OF  BANKRUPTCY.  285 

SECT.  19.  And  be  it  further  enacted,  That  all  debts  due  and  payable  frcm  the 
bankrupt  at  the  time  of  the  adjudication  of  bankruptcy,  and  all  debts  then  exist- 
ing but  not  payable  until  a  future  day,  a  rebate  of  interest  being  made  when  no 
interest  is  payable  by  the  terms  of  contract,  may  be  proved  against  the  estate  of 
the  bankrupt.  All  demands  against  the  bankrupt  for  or  on  account  of  any  goods 
or  chattels  wrongfully  taken,  converted,  or  -withheld  by  him,  may  be  proved  and 
allowed  as  debts  to  the  amount  of  the  value  of  the  property  so  taken  or  withheld, 
with  interest.  If  the  bankrupt  shall  be  bound  as  drawer,  indorser,  surety,  bail,  or 
guarantor  upon  any  bill,  bond,  note,  or  any  other  specialty  or  contract,  or  for  any 
debt  of  another  person,  and  his  liability  shall  not  have  become  absolute  until  after 
the  adjudication  of  bankruptcy,  the  creditor  may  prove  the  same  after  such  liability 
shall  have  become  fixed,  and  before  the  final  dividend  shall  have  been  declared. 
In  all  cases  of  contingent  debts  and  contingent  liabilities  contracted  by  the  bank- 
nipt,  and  not  herein  otherwise  provided  for,  the  creditor  may  make  claim  therefor, 
and  have  his  claim  allowed,  with  the  right  to  share  in  the  dividends,  if  the  contin- 
gency shall  happen  before  the  order  for  the  final  dividend ;  or  he  may  at  any  time 
apply  to  the  court  to  have  the  present  value  of  the  debt  or  liability  ascertained  and 
liquidated,  which  shall  then  be  done  in  such  manner  as  the  court  shall  order,  and 
he  shall  be  allowed  to  prove  for  the  amount  so  ascertained.  Any  person  liable  as 
bail,  surety,  guarantor,  or  otherwise  for  the  bankrupt,  who  shall  have  paid  the  debt 
or  any  part  thereof  in  discharge  of  the  whole,  shall  be  entitled  to  prove  such  debt, 
or  to  stand  in  the  place  of  the  creditor  if  he  shall  have  proved  the  same,  although 
such  payments  shall  have  been  made  after  the  proceedings  hi  bankruptcy  were 
commenced.  And  any  person  so  liable  for  the  bankrupt,  and  who  has  not  paid  the 
whole  of  said  debt,  but  is  still  liable  for  the  same  or  any  part  thereof,  may,  if  the 
creditor  shall  fail  or  omit  to  prove  such  debt,  prove  the  same  either  in  the  name  of 
the  creditor  or  otherwise,  as  may  be  provided  by  the  rules,  and  subject  to  such 
regulations  and  limitations  as  may  be  established  by  such  rules.  Where  the  bank- 
rupt is  liable  to  pay  rent,  or  other  debt  falling  due  at  fixed  and  stated  periods,  the 
creditor  may  prove  for  a  proportionate  part  therof  up  to  the  tune  of  the  bankruptcy, 
as  if  the  same  grew  due  from  day  to  day,  and  not  at  such  fixed  and  stated  periods. 
If  any  bankrupt  shall  be  liable  for  unliquidated  damages  arising  out  of  any  con- 
tract or  promise,  or  on  account  of  any  goods  or  chattels  wrongfully  taken,  converted 
or  withheld,  the  court  may  cause  such  damages  to  be  assessed  in  such  mode  as  it 
may  deem  best,  and  the  sum  so  .assessed  may  be  proved  against  the  estate.  Kb 
debts  other  than  those  above  specified  shall  be  proved  or  allowed  against  the 
estate. 

SECT.  20.  Relates  to  mutual  debts  and  set-offs ;  that  the  balance 
shall  be  struck. 

SECT.  21.  Prohibits  a  creditor  who  proves  his  debt  from  bringing 
any  action  against  the  bankrupt. 

SECT.  22.   Provides  for  proof  of  debts  of  the  creditors  of  the  bank- 


286  BANKRUPTCY. 

rupts,  whether  individuals  or  corporations.  It  must  be  by  oath  or 
solemn  affirmation,  and  other  and  further  evidence  if  it  be  required. 
This  proof  may  be  made  before  a  commissioner,  and  sent  by  him  to 
the  assignee.  Debts  or  claims  not  duly  and  sufficiently  proved  are 
to  be  rejected. 

SECT.  23.  Provides  for  proof  of  debts  before  assignee  is  chosen  ; 
declares  no  creditor  who  has  received  any  preference  or  advantage 
from  the  bankrupt  shall  receive  any  dividend  unless  he  surrenders 
the  preference  or  advantage,  of  whatever  kind  it  may  be,  to  the 
assignee. 

SECT.  24.  Provides  for  appeal  from  District  Court  to  Circuit 
Court  from  a  decision  rejecting  his  claim. 

SECT.  25.  Court  may  order  perishable  property,  or  property  to 
which  right  is  disputed,  to  be  sold. 

SECT.  26.  Relates  to  the  attendance  of  bankrupts,  and  the  exami- 
nation of  them,  and  their  duties  and  rights.  This  section  I  give 
in  full. 

SECT.  26.  And  be  it  further  enacted,  That  the  court  may,  on  the  application  of 
the  assignee  in  bankruptcy,  or  of  any  creditor,  or  without  any  application,  at  all 
times  require  the  bankrupt,  upon  reasonable  notice,  to  attend  and  submit  to  an 
examination  on  oath,  upon  all  matters  relating  to  the  disposal  or  condition  of  his 
property,  to  his  trade  and  dealings  with  others,  and  his  accounts  concerning  the 
same,  to  all  debts  due  to  or  claimed  from  him,  and  to  all  other  matters  concerning 
his  property  and  estate  and  the  due  settlement  thereof  according  to  law,  which 
examination  shall  be  in  writing,  and  shall  be  signed  by  the  bankrupt  and  be 
filed  with  the  other  proceedings ;  and  the  court  may,  in  like  manner,  require  the 
attendance  of  any  other  person  as  a  witness,  and  if  such  person  shall  fail  to  attend, 
on  being  summoned  thereto,  the  court  may  compel  his  attendance  by  warrant 
directed  to  the  marshal,  commanding  him  to  arrest  such  person,  and  bring  him 
forthwith  before  the  court,  or  before  a  register  in  bankruptcy,  for  examination  as 
such  witness.    If  the  bankrupt  is  imprisoned,  absent,  or  disabled  from  attendance, 
the  court  may  order  him  to  be  produced  by  the  jailer,  or  any  officer  in  whose  cus- 
tody he  may  be,  or  may  direct  the  examination  to  be  had,  taken,  and  certified,  at 
such  tune  and  place  and  in  such  manner  as  the  court  may  deem  proper,  and  with 
like  effect  as  if  such  examination  had  been  in  court.     The  bankrupt  shall  at  all 
times,  until  his  discharge,  be  subject  to  the  order  of  the  court,  and  shall,  at  the 
expense  of  the  estate,  execute  all  proper  writings  and  instruments,  and  do  and  per- 
form all  acts  required  by  the  court  touching  the  assigned  property  or  estate,  and  to 
enable  the  assignee  to  demand,  recover,  and  receive  all  the  property  and  estate 
assigned,  wherever  situated ;  and  for  neglect  or  refusal  to  obey  any  order  ol  the 


ABSTRACTS  OF  THE  LAW  OF  BANKRUPTCY.  237 

court,  such  bankrupt  may  be  committed  and  punished  as  for  a  contempt  of  court. 
If  the  bankrupt  is  without  the  district,  and  unable  to  return  and  personally  attend 
at  any  of  the  times,  or  do  any  of  the  acts  which  may  be  specified  or  required  pur- 
suant to  this  section,  and  if  it  appears  that  such  absence  was  not  caused  by  wilful 
default,  and  if,  as  soon  as  may  be  after  the  removal  of  such  impediment,  he  offers 
to  attend  and  submit  to  the  order  of  the  court  in  all  respects,  he  shall  be  permitted 
so  to  do,  with  like  effect  as  if  he  had  not  been  in  default.  He  shall  also  be  at 
liberty,  from  time  to  time,  upon  oath,  to  amend  and  correct  his  schedule  of  credi- 
tors and  property,  so  that  the  same  shall  conform  to  the  facts.  For  good  cause 
shown,  the  wife  of  any  bankrupt  may  be  required  to  attend  before  the  court,  to  the 
end  that  she  may  be  examined  as  a  witness ;  and  if  such  wife  do  not  attend  at  the 
time  and  place  specified  in  the  order,  the  bankrupt  shall  not  be  entitled  to  a  dis- 
charge unless  he  shall  prove  to  the  satisfaction  of  the  court  that  he  was  unable  to 
procure  the  attendance  of  his  wife.  No  bankrupt  shall  be  liable  to  arrest  during 
the  pendency  of  the  proceedings  in  bankruptcy  in  any  civil  action,  unless  the  same 
is  founded  on  some  debt  or  claim  from  which  his  discharge  or  bankruptcy  would 
not  release  him. 

SECT.  27.   Relates  to  the  distribution  of  the  bankrupt's  estate. 
This  section  I  give  in  full. 


The  Distribution  of  the  Bankrupt's  Estate. 

SECT.  27.  And  be  it  further  enacted,  That  all  creditors  whose  debts  are  duly 
proved  and  allowed  shall  be  entitled  to  share  in  the  bankrupt's  property  and  estate 
pro  rata,  without  any  priority  or  preference  whatever,  except  that  wages  due  from 
him  to  any  operative,  or  clerk,  or  house-servant,  to  an  amount  not  exceeding  fifty 
dollars,  for  labor  performed  within  six  months  next  preceding  the  adjudication 
of  bankruptcy,  shall  be  entitled  to  priority,  and  shall  be  first  paid  in  full :  Provided, 
That  any  debt  proved  by  any  person  liable  as  bail,  surety,  guarantor,  or  otherwise, 
for  the  bankrupt,  shall  not  be  paid  to  the  person  so  proving  the  same  until  satisfac- 
tory evidence  shall  be  produced  of  the  payment  of  such  debt  by  such  person  so 
liable,  and  the  share  to  which  such  debt  would  be  entitled  may  be  paid  into  court, 
or  otherwise  held  for  the  benefit  of  the  party  entitled  thereto,  as  the  court  may 
direct.  At  the  expiration  of  three  months  from  the  date  of  the  adjudication  of 
bankruptcy  in  any  case,  or  as  much  earlier  as  the  court  may  direct,  the  court,  upou 
the  request  of  the  assignee,  shall  call  a  general  meeting  of  the  creditors,  of  which 
due  notice  shall  be  given,  and  the  assignee  shall  then  report,  and  exhibit  to  the 
court  and  to  the  creditors  just  and  true  accounts  of  all  his  receipts  and  payments, 
verified  by  his  oath,  and  he  shall  produce  and  file  vouchers  for  all  payments  for 
which  vouchers  shall  be  required  by  any  rule  of  the  court ;  he  shall  also  submit 
the  schedule  of  the  bankrupt's  creditors  and  property  as  amended,  duly  verified 
by  the  bankrupt,  and  a  statement  of  the  whole  estate  of  the  bankrupt  as  then 


288  BANKRUPTCY. 

ascertained,  of  the  property  recovered  and  of  the  property  outstanding,  specifying 
the  cause  of  its  being  outstanding,  also  what  debts  or  claims  are  yet  undetermined, 
and  stating  what  sum  remains  in  his  hands.  At  such  meeting  the  majority  in  value 
of  the  creditors  present  shall  determine  whether  any  and  what  part  of  the  net  pro- 
ceeds of  the  estate,  after  deducting  and  retaining  a  sum  sufficient  to  provide  for  all 
undetermined  claims,  which,  by  reason  of  the  distant  residence  of  the  creditor,  or 
for  other  sufficient  reason,  have  not  been  proved,  and  for  other  expenses  and  contin- 
gencies, shall  be  divided  among  the  creditors;  but  unless  at  least  one-half  in 
value  of  the  creditors  shall  attend  such  meeting,  either  in  person  or  by  attorney, 
it  shall  be  the  duty  of  the  assignee  so  to  determine.  In  case  a  dividend  is  ordered 
the  register  shall,  within  ten  days  after  such  meeting,  prepare  a  list  of  creditors 
entitled  to  dividend,  and  shall  calculate  and  set  opposite  to  the  name  of  each 
creditor  who  has  proved  his  claim  the  dividend  to  which  he  is  entitled  out  of  the 
net  proceeds  of  the  estate  set  apart  for  dividend,  and  shall  forward  by  mail  to 
every  creditor  a  statement  of  the  dividend  to  which  he  is  entitled,  and  such 
creditor  shall  be  paid  by  the  assignee  in  such  manner  as  the  court  may  direct. 

SECT.  28.  Relates  to  subsequent  meetings  of  the  creditors,  divi- 
dends, compensation  of  assignee,  and  order  of  dividend  and  pay- 
ment from  bankrupt's  estate.  This  section  I  give  in  full. 

SECT.  28.  And  be  it  further  enacted,  That  the  like  proceedings  shall  be  had  at 
the  expiration  of  the  next  three  months,  or  earlier,  if  practicable,  and  a  third  meet- 
ing of  creditors  shall  then  be  called  by  the  court,  and  a  final  dividend  then 
declared,  unless  any  action  at  law  or  suit  in  equity  be  pending,  or  unless  some  other 
estate  or  effects  of  the  debtor  afterwards  come  to  the  hands  of  the  assignee,  in 
which  case  the  assignee  shall,  as  soon  as  may  be,  convert  such  estate  or  effects  into 
money,  and  within  two  months  after  the  same  shall  be  so  converted,  the  same  shall 
be  divided  in  manner  aforesaid.  Further  dividends  shall  be  made  in  like  manner 
as  often  as  occasion  requires ;  and  after  the  third  meeting  of  creditors,  no  further 
meeting  shall  be  called,  unless  ordered  by  the  court.  If  at  any  time  there  shall  be 
in  the  hands  of  the  assignee  any  outstanding  debts  or  other  property,  due  or 
belonging  to  the  estate,  which  cannot  be  collected  and  received  by  the  assignee 
without  unreasonable  or  inconvenient  delay  or  expense,  the  assignee  may,  under 
the  direction  of  the  court,  sell  and  assign  such  debts  or  other  property  in  such 
manner  as  the  court  shall  order.  No  dividend  already  declared  shall  be  disturbed 
by  reason  of  debts  being  subsequently  proved ;  but  the  creditors  proving  such 
debts  shall  be  entitled  to  a  dividend  equal  to  those  already  received  by  the 
other  creditors  before  any  further  payment  is  made  to  the  latter.  Preparatory  to 
the  final  dividend,  the  assignee  shall  submit  his  account  to  the  court,  and  file  the 
same,  and  give  notice  to  the  creditors  of  such  filing,  and  shall  also  give  notice 
that  he  will  apply  for  a  settlement  of  his  account,  and  for  a  discharge  from  all 
liability  as  assignee,  at  a  time  to  be  specified  in  such  notice ;  and  at  such  time  tha 


ABSTRACTS  OF  THE  LAW  OF  BANKRUPTCY.  289 

shall  audit  and  pass  the  accounts  of  the  assignee,  and  such  assignee  ahall,  if 
required  by  the  court,  be  examined  as  to  the  truth  of  such  account,  and,  if  found 
correct,  he  shall  thereby  be  discharged  from  all  liability  as  assignee  to  any  creditor 
of  the  bankrupt.  The  court  shall  thereupon  order  a  dividend  of  the  estate  and 
effects,  or  of  such  part  thereof  as  it  sees  fit,  among  such  of  the  creditors  as  have 
proved  their  claims,  in  proportion  to  the  respective  amount  of  their  said  debts.  In 
addition  to  all  expenses  necessarily  incurred  by  him  in  the  execution  of  his  trust, 
in  any  case,  the  assignee  shall  be  entitled  to  an  allowance  for  his  services  in  such 
case,  on  all  moneys  received  and  paid  out  by  him  therein,  for  any  sum  not  exceed- 
ing one  thousand  dollars,  five  per  centum  thereon ;  for  any  larger  sum,  not  exceed- 
ing five  thousand  dollars,  two  and  a  half  per  centum  on  the  excess  over  one 
thousand  dollars ;  and  for  any  larger  sum,  one  per  centum  on  the  excess  over  five 
thousand  dollars ;  and  if,  at  any  time,  there  shall  not  be  in  his  hands  a  sufficient 
amount  of  money  to  defray  the  necessary  expenses  required  for  the  further  execu- 
tion of  his  trust,  he  shall  not  be  obliged  to  proceqd  therein  until  the  necessary 
funds  are  advanced  or  satisfactorily  secured  to  him.  If,  by  accident,  mistake  or 
other  cause,  without  fault  of  the  assignee,  either  or  both  of  the  said  second  and 
third  meetings  should  not  be  held  within  the  times  limited,  the  court  may,  upon 
motion  of  an  interested  party,  order  such  meetings,  with  like  effect  as  to  the 
validity  of  the  proceedings  as  if  the  meeting  had  been  duly  held.  In  the  order  for 
a  dividend,  under  this  section,  the  following  claims  shall  be  entitled  to  priority  or 
preference,  and  to  be  first  paid  in  full  hi  the  following  order :  — 

First,  The  fees,  costs,  and  expenses  of  suits,  and  the  several  proceedings  in  bank- 
ruptcy under  this  act,  and  for  the  custody  of  property,  as  herein  provided. 

Second,  All  debts  due  to  the  United  States,  and  all  taxes  and  assessments  under 
the  laws  thereof. 

Third,  All  debts  due  to  the  State  in  which  the  proceedings  in  bankruptcy  are 
pending,  and  all  taxes  and  assessments  made  under  the  laws  of  such  State. 

Fourth,  Wages  due  to  any  operative,  clerk,  or  house-servant,  to  an  amount  not 
exceeding  fifty  dollars,  for  labor  performed  within  six  months  next  preceding  the 
first  publication  of  the  notice  of  proceedings  in  bankruptcy. 

Fifth,  All  debts  due  to  any  persons  who,  by  the  laws  of  the  United  States,  are 
or  may  be  entitled  to  a  priority  or  preference,  in  like  manner  as  if  this  act  had  not 
been  passed :  Always  provided,  That  nothing  contained  in  this  act  shall  interfere 
with  the  assessment  and  collection  of  taxes  by  the  authority  of  the  United  States 
or  any  State. 

SECTS.  29,  30,  81,  32,  33,  and  34.  Relate  to  the  discharge  of  the 
bankrupt,  and  its  effect.  These  sections  I  give  in  full. 

The  Bankrtipt's  Discharge,  and  its  Effect. 

SECT.  29.  And,  be  it  further  enacted,  That  at  any  tune  after  the  expiration  of  six 
months  from  the  adjudication  of  bankruptcy,  or  if  no  debts  have  been  proved 


290  BANKRUPTCY. 

against  the  bankrupt,  or  if  no  assets  have  come  to  the  hands  of  the  assignee,  at 
any  time  after  the  expiration  of  sixty  days,  and  within  one  year  from  the  adjudica- 
tion of  bankruptcy,  the  bankrupt  may  apply  to  the  court  for  a  discharge  from  his 
debts,  and  the  court  shall  thereupon  order  notice  to  be  given  by  mail  to  all  credit- 
ors who  have  proved  their  debts,  and  by  publication  at  least  once  a  week  in  such 
newspapers  as  the  court  shall  designate,  due  regard  being  had  to  the  general  circu- 
lation of  the  same  in  the  district,  or  in  that  portion  of  the  district  in  which  the 
bankrupt  and  his  creditors  shall  reside,  to  appear  on  a  day  appointed  for  that  pur- 
pose, and  show  cause  why  a  discharge  should  not  be  granted  to  the  bankrupt.  No 
discharge  shall  be  granted,  or,  if  granted,  be  valid,  if  the  bankrupt  has  wilfully 
sworn  falsely  in  his  affidavit  annexed  to  his  petition,  schedule,  or  inventory,  or  upon 
any  examination  in  the  course  of  the  proceedings  in  bankruptcy,  in  relation  to  any 
material  fact  concerning  his  estate  or  his  debts,  or  to  any  other  material  fact ;  or  if 
he  has  concealed  any  part  of  his  estate  or  effects,  or  any  books  or  writings  relating 
thereto,  or  if  he  has  been  guilty  of  any  fraud  or  negligence  in  the  care,  custody,  or 
delivery  to  the  assignee  of  the  property  belonging  to  him  at  the  time  of  the  presen- 
tation of  his  petition  and  inventory,  excepting  such  pioperty  as  he  is  permitted  to 
retain  under  the  provisions  of  this  act,  or  if  he  has  caused,  permitted,  or  suffered 
any  loss,  waste,  or  destruction  thereof;  or  if,  within  four  months  before  the  com- 
mencement of  such  proceedings,  he  has  procured  his  lands,  goods,  money,  or  chat- 
tels to  be  attached,  sequestered,  or  seized  on  execution ;  or  if,  since  the  passage  of 
this  act,  he  has  destroyed,  mutilated,  altered,  or  falsified  any  of  his  books,  docu- 
ments, papers,  writings,  or  securities,  or  has  made  or  been  privy  to  the  making  of 
any  false  or  fraudulent  entry  in  any  book  of  account  or  other  document,  with  in- 
tent to  defraud  his  creditors ;  or  has  removed  or  caused  to  be  removed  any  part  of 
his  property  from  the  district,  with  intent  to  defraud  his  creditors ;  or  if  he  has 
given  any  fraudulent  preference  contrary  to  the  provisions  of  this  act,  or  made  any 
fraudulent  payment,  gift,  transfer,  conveyance,  or  assignment  of  any  part  of  his 
property,  or  has  lost  any  part  thereof  in  gaming,  or  has  admitted  a  false  or  fictitious 
debt  against  his  estate ;  or  if,  having  knowledge  that  any  person  has  proved  such 
false  or  fictitious  debt,  he  has  not  disclosed  the  same  to  his  assignee  within  one 
month  after  such  knowledge ;  or  if,  being  a  merchant  or  tradesman,  he  has  not,  sub- 
sequently to  the  passage  of  this  act,  kept  proper  books  of  account ;  or  if  he,  or  any 
person  in  his  behalf,  has  procured  the  assent  of  any  creditor  to  the  discharge,  or 
influenced  the  action  of  any  creditor  at  any  stage  of  the  proceedings,  by  any  pecu- 
niary consideration  or  obligation ;  or  if  he  has,  in  contemplation  of  becoming  bank- 
rupt, made  any  pledge,  payment,  transfer,  assignment,  or  conveyance  of  any  part  of 
his  property,  directly  or  indirectly,  absolutely  or  conditionally,  for  the  purpose  of 
preferring  any  creditor  or  person  having  a  claim  against  him,  or  who  is  or  may  be 
under  liability  for  him,  or  for  the  purpose  of  preventing  the  property  from  coming 
into  the  hands  of  the  assignee,  or  of  being  distributed  under  this  act  in  satisfaction 
of  his  debts ;  or  if  he  has  been  convicted  of  any  misdemeanor  under  this  act,  or  has 
been  guilty  of  any  fraud  whatever  contrary  to  the  true  intent  of  this  act ;  and  be- 
fore any  discharge  is  granted,  the  bankrupt  shall  take  and  subscribe  an  oath  to  the 


ABSTRACTS  OF  THE  LAW  OF  BANKRUPTCY.  291 

effect  that  he  has  not  done,  suffered,  or  been  privy  to  any  act,  matter,  or  thing 
specified  in  this  act  as  a  ground  for  withholding  such  discharge,  or  as  invalidating 
such  discharge  if  granted. 

SECT.  30.  And  be  it  further  enacted,  That  no  person  who  shall  have  been  dis- 
charged under  this  act,  and  shall  afterwards  become  bankrupt,  on  his  own  ajylication, 
shall  be  again  entitled  to  a  discharge  whose  estate  is  insufficient  to  pay  seventy  per 
centum  of  the  debts  proved  against  it,  unless  the  assent  in  writing  of  three-fourths 
in  value  of  his  creditors  who  have  proved  their  claims  is  filed  at  or  before  the  tune 
of  application  for  discharge  ;  but  a  bankrupt  who  shall  prove  to  the  satisfaction  of 
the  court  that  he  has  paid  all  the  debts  owing  by  him  at  the  time  of  any  previous 
bankruptcy,  or  who  has  been  voluntarily  released  therefrom  by  his  creditors,  shall 
be  entitled  to  a  discharge  in  the  same  manner  and  with  the  same  effect  as  if  he  had 
not  previously  been  bankrupt. 

SECT.  31.  And  it  is  further  enacted,  That  any  creditor  opposing  the  discharge  of 
any  bankrupt  may  file  a  specification  in  writing  of  the  grounds  of  hij  opposition, 
and  the  court  may,  in  its  discretion,  order  any  question  of  fact  so  presented  to  be  tried 
at  a  stated  session  of  the  district  court. 

SECT.  32.  And  be  it  further  enacted,  That  if  it  shall  appear  to  the  court  that  the 
bankrupt  has  in  all  things  conformed  to  his  duty  under  this  act,  and  that  he  is 
entitled,  under  the  provisions  thereof,  to  receive  a  discharge,  the  court  shall  grant 
him  a  discharge  from  all  his  debts  except  as  hereinafter  provided,  and  shall  give 
him  a  certificate  thereof  under  the  seal  of  the  court,  in  substance  as  follows  : 

District  Court  of  the  United  States.     District  of  Whereas 

has  been  duly  adjudged  a  bankrupt  under  the  act  of  Congress  establishing  a  uni- 
form system  of  bankruptcy  throughout  the  United  States,  and  appears  to  have  con- 
formed to  all  the  requirements  of  law  in  that  behalf,  it  is  therefore  ordered  by  the 
court  that  said  be  forever  discharged  from  all  debts  and  claims  which  by 

said  act  are  made  provable  against  his  estate,  and  which  existed  on  the 
day  of  ,  on  which  day  the  petition  for  adjudication  was  filed  by  (or  against) 

him  ;  excepting  such  debts,  if  any,  as  are  by  said  act  excepted  from  the  operation 
of  a  discharge  in  bankruptcy.  Given  under  my  hand  and  the  seal  of  the  Court  at 

in  the  said  district,  this  day  of  ,  A.D. 

(Seal.)  ,  Judge, 

SECT.  33.  And  be  it  further  enacted,  That  no  debt  created  by  the  fraud  or  em- 
bezzlement of  the  bankrupt,  or  by  his  defalcation  as  a  public  officer,  or  while  acting 
hi  any  fiduciary  character,  shall  be  discharged  under  this  act ;  but  the  debt  may  tte 
proved,  and  the  dividend  thereon  shall  be  a  payment  on  account  of  said  debt ;  and 
no  discharge  granted  under  this  act  shall  release,  discharge,  or  affect  any  person 
liable  for  the  same  debt  for  or  with  the  bankrupt,  either  as  partner,  joint  contractor, 
indorser,  surety,  or  otherwise.  [And  in  all  proceedings  in  bankruptcy  commenced 
after  one  year  from  the  tune  this  act  shall  go  into  operation,  no  discharge  shall  be 


292  BANKBUPTCY. 

granted  to  a  debtor  whose  assets  do  not  pay  fifty  per  centum  of  the  claims  agaiast 
his  estate,  unless  the  assent  in  writing  of  a  majority  in  number  and  value  of  his 
creditors  who  have  proved  their  claims  is  filed  in  the  case  at  or  before  the  time  of 
application  for  discharge.] 

SECT.  34.  And  be  it  further  enacted,  That  a  discharge  duly  granted  under  this  act 
shall,  with  the  exceptions  aforesaid,  release  the  bankrupt  from  all  debts,  claims, 
liabilities,  and  demands  which  were  or  might  have  been  proved  against  his  estate 
in  bankruptcy,  and  may  be  pleaded,  by  a  simple  averment  that  on  the  day  of  its 
date  such  discharge  was  granted  to  him,  setting  the  same  forth  in  hsec  verba,  as  a 
full  and  complete  bar  to  all  suits  brought  on  any  such  debts,  claims,  liabilities,  or 
demands,  and  the  certificate  shall  be  conclusive  evidence  in  favor  of  such  bankrupt 
of  the  fact  and  the  regularity  of  such  discharge  :  Always  provided,  That  any  creditor 
or  creditors  of  said  bankrupt,  whose  debt  was  proved  or  provable  against  the 
estate  in  bankruptcy,  who  shall  see  fit  to  contest  the  validity  of  said  discharge  on 
the  ground  that  it  was  fraudulently  obtained,  mify,  at  any  time  within  [two  years] 
after  the  date  thereof,  apply  to  the  court  which  granted  it  to  set  aside  and  annul 
the  same.  Said  application  shall  be  in  writing,  shall  specify  which,  in  particular, 
of  the  several  acts  mentioned  in  section  twenty-nine  it  is  intended  to  give  evidence 
of  against  the  bankrupt,  setting  forth  the  grounds  of  avoidance,  and  no  evidence 
shall  be  admitted  as  to  any  other  of  the  said  acts ;  but  said  application  shall  be  sub- 
ject to  amendment  at  the  discretion  of  the  court.  The  court  shall  cause  reasonable 
notice  of  said  application  to  be  given  to  said  bankrupt,  and  order  him  to  appear  and 
answer  the  same,  within  such  time  as  to  the  court  shall  seem  fit  and  proper.  If, 
upon  the  hearing  of  said  parties,  the  court  shall  find  that  the  fraudulent  acts,  or  any 
of  them,  set  forth  as  aforesaid  by  said  creditor  or  creditors  against  the  bankrupt, 
are  proved,  and  that  said  creditor  or  creditors  had  no  knowledge  of  the  same  until 
after  the  granting  of  said  discharge,  judgment  shall  be  given  in  favor  of  said  creditor 
or  creditors,  and  the  discharge  of  said  bankrupt  shall  be  set  aside  and  annulled. 
But  if  said  court  shall  find  that  said  fraudulent  acts,  and  all  of  them,  set  forth  as 
aforesaid,  are  not  proved,  or  that  they  were  known  to  said  creditor  or  creditors 
before  the  granting  of  said  discharge,  then  judgment  shall  be  rendered  hi  favor  of 
the  bankrupt,  and  the  validity  of  his  discharge  shall  not  be  affected  by  said  pro- 
ceedings. 

SECT.  35.  Relates  to  fraudulent  conveyances  or  transfers  by  the 
bankrupt,  declares  them  to  be  void,  and  defines  what  are  such 
conveyances  or  transfers.  This  section  I  give  in  full. 


Preferences  and  Fraudulent  Conveyances  Declared   Void. 

SECT.  35.  And  be  it  further  enacted,  That  if  any  person,  being  insolvent,  or  in 
Contemplation  of  insolvency,  within  four  months  before  the  filing  of  the  petition  by 


ABSTEACTS  OF  THE  LAW  OF  BANKBUPTCY.  293 

or  against  him,  with  a  view  to  give  a  preference  to  any  creditor  or  person  having 
a  claim  against  him,  or  who  is  under  any  liability  for  him,  procures  any  part  of 
his  property  to  be  attached,  sequestered,  or  seized  on  execution,  or  makes  any 
payment,  pledge,  assignment,  transfer,  or  conveyance  of  any  part  of  his  property, 
either  directly  or  indirectly,  absolutely  or  conditionally,  the  person  receiving  such 
payment,  pledge,  assignment,  transfer,  or  conveyance,  or  to  be  benefited  thereby, 
or  by  such  attachment,  having  reasonable  cause  to  believe  such  person  is  insolvent, 
and  that  such  attachment,  payment,  pledge,  assignment,  or  conveyance  is  made  in 
fraud  of  the  provisions  of  this  act,  the  same  shall  be  void,  and  the  assignee  may 
recover  the  property,  or  the  value  of  it,  from  the  person  so  receiving  it,  or  so  to  be 
benefited ;  and  if  any  person  being  insolvent,  or  in  contemplation  of  insolvency  or 
bankruptcy,  within  six  months  before  the  filing  of  the  petition  by  or  against  him, 
makes  any  payment,  sale,  assignment,  transfer,  conveyance,  or  other  disposition  of 
any  part  of  his  property  to  any  person  who  then  has  reasonable  cause  to  believe 
him  to  be  insolvent,  or  to  be  acting  in  contemplation  of  insolvency,  and  that  such 
payment,  sale,  assignment,  transfer,  or  other  conveyance,  is  made  with  a  view  to 
prevent  his  property  from  coming  to  his  assignee  in  bankruptcy,  or  to  prevent  the 
same  from  being  distributed  under  this  act,  or  to  defeat  the  object  of,  or  in  any  way 
impair,  hinder,  impede,  or  delay  the  operation  and  effect  of,  or  to  evade  any  of  the 
provisions  of  this  act,  the  sale,  assignment,  transfer,  or  conveyance  shall  be  void, 
and  the  assignee  may  recover  the  property,  or  the  value  thereof,  as  assets  of  the 
bankrupt.  And  if  such  sale,  assignment,  transfer,  or  conveyance  is  not  made  in 
the  usual  and  ordinary  course  of  business  of  the  debtor,  the  fact  shall  be  prima 
facie  evidence  of  fraud.  Any  contract,  covenant,  or  security  made  or  given  by  a 
bankrupt  or  other  person  with,  or  in  trust  for,  any  creditor,  for  securing  the  pay- 
ment of  any  money  as  a  consideration  for  or  with  intent  to  induce  the  creditor  to 
forbear  opposing  the  application  for  discharge  of  the  bankrupt,  shall  be  void  ;  and 
if  any  creditor  shall  obtain  any  sum  of  money  or  other  goods,  chattels,  or  security 
from  any  person  as  an  inducement  for  forbearing  to  oppose,  or  consenting  to  such 
application  for  discharge,  every  creditor  so  offending  shall  forfeit  all  right  to  any 
ehare  or  dividend  in  the  estate  of  the  bankrupt,  and  shall  also  forfeit  double  the 
value  or  amount  of  such  money,  goods,  chattels,  or  security  so  obtained,  to  be 
recovered  by  the  assignee  for  the  benefit  of  the  estate. 

SECTS.  36  and  37.  Relate  to  the  bankruptcy  of  partnerships  or 
corporations,  and  apply  to  them  the  provisions  of  this  act. 

SECT.  38.  Provides  that  the  filing  of  the  petition  for  bankruptcy 
shall  be  taken  as  the  beginning  of  the  proceedings,  and  also  for  the 
taking. of  testimony  by  depositions. 

SECT.  39.  Relates  to  what  is  called  Involuntary  Bankruptcy,  or 
bankruptcy  on  the  petition  of  a  creditor.  This  section  I  give  in 
full. 


294  BAIfKEUPTCY. 


Involuntary  Bankruptcy. 

SECT.  39.  And  be  it  further  enacted,  That  any  person  residing  and  owing  debts 
as  aforesaid,  who,  after  the  passage  of  this  act,  shall  depart  from  the  State,  district, 
or  Territory,  of  which  he  is  an  inhabitant,  with  intent  to  defraud  his  creditors,  or, 
being  absent,  shall,  with  such  intent,  remain  absent ;  or  shall  conceal  himself  to 
avoid  the  service  of  legal  process  in  any  action  for  the  recovery  of  a  debt  or  demand 
provable  under  this  act ;  or  shall  conceal  and  remove  any  of  his  property  to  avoid 
its  being  attached,  taken,  or  sequestered  on  legal  process ;  or  shall  make  any  assign- 
ment, gift,  sale,  conveyance,  or  transfer  of  his  estate,  property,  rights,  or  credits, 
either  within  the  United  States  or  elsewhere,  with  intent  to  delay,  defraud,  or 
hinder  his  creditors ;  or  who  has  been  arrested  and  held  in  custody  under  or  by 
virtue  of  mesne  process  of  execution,  issued  out  of  any  court  of  any  State,  district, 
or  Territory,  within  which  such  debtor  resides  or  has  property,  founded  upon  a 
demand  in  its  nature  provable  against  a  bankrupt's  estate  under  this  act,  and  for  a 
gum  exceeding  one  hundred  dollars,  and  such  process  is  remaining  hi  force  and  not 
discharged  by  payment,  or  in  any  other  manner  provided  by  the  law  of  such  State, 
district,  or  Territory  applicable  thereto,  for  a  period  of  seven  days ;  or  has  been 
actually  imprisoned  for  more  than  seven  days  in  a  civil  action,  founded  on  contract, 
for  the  sum  of  one  hundred  dollars  or  upwards ;  or  who,  being  bankrupt  or  insol- 
vent, or  in  contemplation  of  bankruptcy  or  insolvency,  shall  make  any  payment, 
gift,  grant,  sale,  conveyance,  or  transfer  of  money,  or  other  property,  estate,  rights, 
or  credits,  or  give  any  warrant  to  confess  judgment,  or  procure  or  suffer  his  prop- 
erty to  be  taken  on  legal  process,  with  intent  to  give  a  preference  to  one  or  more 
of  his  creditors,  or  to  any  person  or  persons  who  are  or  may  be  liable  for  him  as 
indorsers,  bail,  sureties,  or  otherwise,  or  with  the  intent,  by  such  disposition  of  his 
property,  to  defeat  or  delay  the  operation  of  this  act ;  or  who,  being  a  banker,  mer- 
chant, or  trader,  has  fraudulently  stopped  or  suspended  and  not  resumed  payment 
of  his  commercial  paper,  within  a  period  of  fourteen  days,  shall  be  deemed  to  have 
committed  an  act  of  bankruptcy,  and,  subject  to  the  conditions  hereinafter  pre- 
scribed, shall  be  adjudged  a  bankrupt,  on  the  petition  of  one  or  more  of  his 
creditors,  the  aggregate  of  whose  debts  provable  under  this  act  amount  to  at  least 
two  hundred  and  fifty  dollars,  provided  such  petition  is  brought  within  six  months 
after  the  act  of  bankruptcy  shall  have  been  committed.  And  if  such  person  shall 
be  adjudged  a  bankrupt,  the  assignee  may  recover  back  the  money  or  other  prop- 
erty so  paid,  conveyed,  sold,  assigned,  or  transferred  contrary  to  this  act,  provided 
the  person  receiving  such  payment  or  conveyance  had  reasonable  cause  to  believe 
that  a  fraud  on  this  act  was  intended,  or  that  the  debtor  was  insolvent,  and  such 
creditor  shall  not  be  allowed  to  prove  his  debt  hi  bankruptcy. 

SECTS.  40,  41,  42.   Regulate  the  proceedings  under  such  a  peti- 
tion. 


ABSTRACTS   OF  THE  LAW  OF  BANKRUPTCY.  295 

SECT.  43.  Kelates  to  the  superseding  of  the  proceedings  in  bank- 
ruptcy, by  placing  the  property  in  the  hands  of  trustees,  if  three- 
fourths  in  value  of  the  creditors  desire  it.  This  section  I  give  in 
full. 

Of  Superseding  the  Bankrupt  Proceedings  by  Arrangement. 

SECT.  43.  And  be  it  further  enacted,  That  if  at  the  first  meeting  of  creditors,  or 
at  any  meeting  of  creditors  to  be  specially  called  for  that  purpose,  and  of  which 
previous  notice  shall  have  been  given  for  such  length  of  Jime  and  in  such  manner 
as  the  court  may  direct,  three-fourths  in  value  of  the  creditors  whose  claims  have 
been  proved  shall  determine  and  resolve  that  it  is  for  the  interest  of  the  general 
body  of  the  creditors  that  the  estate  of  the  bankrupt  should  be  wound  up  and 
settled,  and  distribution  made  among  the  creditors  by  trustees,  under  the  inspection 
and  direction  of  a  committee  of  the  creditors,  it  shall  be  lawful  for  the  creditors  to 
certify  and  report  such  resolution  to  the  court,  and  to  nominate  one  or  more 
trustees  to  take  and  hold  and  distribute  the  estate,  under  the  direction  of  such 
committee.  If  it  shall  appear  to  the  court,  after  hearing  the  bankrupt  and  such 
creditors  as  may  desire  to  be  heard,  that  the  resolution  was  duly  passed  and  that 
the  interests  of  the  creditors  will  be  promoted  thereby,  it  shall  confirm  the  same  ; 
and  upon  the  execution  and  filing,  by  or  on  behalf  of  three-fourths  in  value  of  all 
the  creditors  whose  claims  have  been  proved,  of  a  consent  that  the  estate  of  the 
ba.7.krupt  be  wound  up  and  settled  by  said  trustees,  according  to  the  terms  of  such 
resolution,  the  bankrupt,  or  his  assignee  in  bankruptcy,  if  appointed,  as  the  case 
may  be,  shall,  under  the  direction  of  the  court,  and  under  oath,  convey,  transfer, 
and  deliver  all  the  property  and  estate  of  the  bankrupt  to  the  said  tiustee  or 
trustees,  who  shall,  upon  such  conveyance  and  transfer,  have  and  hold  the  same  in 
the  same  manner,  and  with  the  same  powers  and  rights,  in  all  respects,  as  the 
bankrupt  would  have  had  or  held  the  same  if  no  proceedings  in  bankruptcy  had 
been  taken  ;  or  as  the  assignee  in  bankruptcy  would  have  done  had  such  resolution 
not  been  passed ;  and  such  consent  and  the  proceedings  thereunder  shall  be  as 
binding  in  all  respects  on  any  creditor  whose  debt  is  provable,  who  has  not  signed 
the  same,  as  if  he  had  signed  it,  and  on  any  creditor  whose  debt,  if  provable,  is  not 
proved,  as  if  he  had  proved  it ;  and  the  court,  by  order,  shall  direct  all  acts  and 
things  needful  to  be  done  to  carry  into  effect  such  resolution  of  the  creditors ;  and 
the  said  trustees  shall  proceed  to  wind  up  and  settle  the  estate  under  the  direction 
and  inspection  of  such  committee  of  the  creditors,  for  the  equal  benefit  of  all  such 
creditors,  and  the  winding  up  and  settlement  of  any  estate  under  the  provisions  of 
this  section  shall  be  deemed  to  be  proceedings  hi  bankruptcy  under  this  act ;  and 
the  said  trustees  shall  have  all  the  rights  and  powers  of  assignees  in  bankruptcy. 
The  court,  on  the  application  of  such  trustees,  shall  have  power  to  summon  and 
examine,  on  oath  or  otherwise,  the  bankrupt,  and  any  creditor,  and  any  person 
indebted  to  the  estate,  or  known  or  suspected  of  having  any  of  the  estate  in  his 
possession,  or  any  other  person  whose  examination  may  be  material  or  necessary  to 


296  BANKRUPTCY. 

aid  the  trustees  in  the  execution  of  their  trust,  and  to  compel  the  attendance  of 
such  persons  and  the  production  of  books  and  papers  in  the  same  manner  as  in 
other  proceedings  in  bankruptcy  under  this  act ;  and  the  bankrupt  shall  have  the 
like  right  to  apply  for  and  obtain  a  discharge  after  the  passage  of  such  resolution 
and  the  appointment  of  such  trustees  as  if  such  resolution  had  not  been  passed, 
and  as  If  all  the  proceedings  had  continued  in  the  manner  provided  in  the  preced- 
ing sections  of  this  act  If  the  resolution  shall  not  be  duly  reported,  or  the  consent 
of  the  creditors  shah1  not  be  duly  filed,  or  if,  upon  its  filing,  the  court  shall  not 
think  fit  to  approve  thereof,  the  bankruptcy  shall  proceed  as  though  no  resolution 
had  been  passed,  and  the  court  may  make  all  necessary  orders  for  resuming  the 
proceedings.  And  the  period  of  tune  which  shall  have  elapsed  between  the  date 
of  the  resolution  and  the  date  of  the  order  for  resinning  the  proceedings  shall  not 
be  reckoned  in  calculating  periods  of  time  prescribed  by  this  act. 

SECT.  44.  Provides  that  debtors,  who,  after,  the  commencement  of 
proceedings  in  bankruptcy  (which  means  the  filing  of  the  petition), 
fraudulently  conceal  any  property,  or  hinder  the  assignee  from  get- 
ting hold  of  it,  or  spend  any  part  of  it  in  gaming,  or,  within  three 
months  next  before  the  petition,  dispose  of  any  property  otherwise 
than  by  honest  transactions  in  his  trade,  which  property  was  bought 
on  credit  and  is  unpaid  for,  shall  be  punished  by  imprisonment  not 
exceeding  three  years. 

SECT.  45.  Provides  that  defaulting  officers  shall  be  punished  by  a 
fine  not  less  than  three  hundred  nor  more  than  five  hundred  dol- 
lars, and  imprisonment  not  more  than  three  years. 

SECT.  46.  Provides  that  forgery  or  counterfeiting  of  any  court 
seal,  any  court  paper,  or  the  tendering  for  use  of  any  document  so 
forged  or  counterfeited,  shall  be  punished  by  a  fine  not  less  than 
five  hundred  nor  more  than  five  thousand  dollars,  and  imprisonment 
not  exceeding  five  years. 

SECT.  47.   Relates  to  fees  and  costs  of  proceedings. 

SECT.  48.  Gives  the  meaning  and  definition  of  sundry  words  used 
iu  the  act. 

SECT.  49.  Gives  jurisdiction  in  cases  of  bankruptcy  to  the 
Supreme  Court  of  the  District  of  Columbia  and  of  the  several  Terri- 
tories, when  the  bankrupt  resides  therein. 

SECT.  50.  Declares  that  the  act  goes  into  force  when  approved, 
but  no  petition  can  be  filed  before  1st  of  June,  1867.  On  July  25, 
1868,  a  short  amendatory  act  was  passed,  as  follows :  — 


AMENDATORY  ACT.  297 


Amendatory  Act  of  1868. 

A  BILL   IX  AMENDMENT    TO    AN    ACT    ENTITLED   "  AN    ACT    TO    ESTABLISH    A 

UNIFORM  SYSTEM  OF  BANKRUPTCY  THROUGHOUT  THE  UNIIED   STATES," 
APPROVED  MARCH  2,  1867. 

Be  it  enacted,  tfc.,  That  the  provisions  of  the  second  clause  of  the  33d  section 
of  said  act  shall  not  apply  to  cases  of  proceedings  in  bankruptcy  commenced  prior 
to  the  first  day  of  January,  1869,  and  the  time,  during  which  the  operation  of  the 
provisions  of  said  clause  is  postponed,  shall  be  extended  until  the  said  first  day  of 
January,  1869,  and  said  clause  is  so  amended  as  to  read  as  follows :  — 

In  all  proceedings  in  bankruptcy  commenced  after  the  first  day  of  January, 
1869,  no  discharge  shall  be  granted  to  a  debtor  whose  assets  shall  not  be  equal  to 
fifty  per  centum  of  the  claims  proved  against  his  estate,  upon  which  he  shall  be 
liable  as  the  principal  debtor,  unless  the  assent  in  writing  of  a  majority  in  number 
and  value  of  his  creditors  to  whom  he  shall  have  become  liable  as  principal  debtor, 
and  who  shall  have  proved  their  claims,  be  filed  in  the  case  at  or  before  the  tune 
of  the  hearing  of  the  application  for  discharge. 

SECT.  2.  And  be  it  further  enacted,  That  said  act  be  further  amended  as  follows: 
The  phrase  "  presented  or  defended,"  in  the  14th  section  of  said  act,  shall  read 
"  prosecuted  or  defended."  The  phrase  "  nor  resident  debtors,"  in  line  5,  section 
22,  of  the  act  as  printed  in  the  statute  at  large,  shall  read  "  non-resident  creditors  • " 
that  the  word  "  or,"  in  the  next  to  the  last  line  of  the  39th  section  of  the  act,  shall 
read  "  and ; "  that  the  phrase  "  section  13,"  in  the  42d  section,  shall  read 
"section  11;"  and  the  phrase  "or  spends  any  part  thereof  in  gaming,"  in  the 
44th  section  of  said  act,  shall  read  "  or  shall  spend  any  part  thereof  in  gaming ; " 
and  that  the  words  "  with  the  senior  register  or,"  and  the  phrase  "  to  be  delivered 
to  the  register,"  in  the  47th  section  of  said  act,  be  stricken  out. 

SECT.  3.  And  le  it  further  enacted,  That  the  register  in  bankruptcy  shall  have 
power  to  administer  oaths  in  all  cases  and  in  relation  to  all  matters  in  which  oaths 
may  be  administered  by  commissioners  of  the  circuit  courts  of  the  United  States, 
and  such  commissioners  may  take  proof  of  debts  in  bankruptcy  in  all  cases,  subject 
to  the  revision  of  such  proofs  by  the  register  and  by  the  court,  according  to  the 
provisions  of  said  act. 

Approved  July  25,  1868. 

The  various  forms  required  are  not  given  here,  because  they  have 
been  issued  on  the  authority  of  the  Supreme  Court  of  the  United 
States,  and  are  uniform  throughout  the  States,  and  are  supplied  by 
the  Registers  of  bankruptcy  to  every  applicant ;  and  to  one  of  them 
every  person  desiring  to  become  a  bankrupt,  and  every  person  desir- 
ing to  bring  another  person  into  bankruptcy,  must  apply. 


298  BANKRUPTCY. 

In  the  District  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  New  York,  the  Hon.  Judge  Blatchford  has  established  cer- 
tain rules  for  practice  under  the  Bankrupt  Law.  Resting  on  his 
high  authority,  and  the  usage  of  the  principal  centre  of  business  in 
the  country,  these  rules  will  doubtless  be  regarded  everywhere  ;  and 
the  practice  in  all  the  States  will  be  in  substantial  conformity  with 
them.  These  rules  are  as  follows  :  — 

Rules  in  Bankruptcy. 

Rule  1.  —  In  voluntary  bankruptcy,  where  the  petition  states  that  the  debtor, 
whether  an  individual,  a  copartnership,  a  corporation,  or  a  joint-stock  company, 
has  resided  or  carried  on  business  for  the  six  months  next  immediately  preceding 
the  time  of  filing  the  petition,  or  for  the  longest  period  during  such  six  months,  in 
the  city  and  county  of  New  York,  the  petitions  shall  be  referred,  in  rotation,  by 
Form  No.  4,  to  the  several  registers,  appointed  in  the  six  Congressional  districts 
therein,  commencing  with  the  fourth,  and  ending  with  the  ninth,  in  the  order  of 
the  times  of  filing  such  petitions;  and  where  in  any  other  county,  the  petition  shall 
be  referred,  by  Form  No.  4,  to  the  register  appointed  in  the  Congressional  district 
hi  which  such  county  is  embraced.  A  petition  may  be  otherwise  referred  for  special 
reasons,  or  in  cases  not  herein  provided  for.  In  involuntary  bankruptcy,  the  regis- 
ter will  be  designated  with  reference  to  the  special  circumstances  of  each  case. 

The  order,  Form  No.  4,  designating  the  register  to  act  upon  the  petition,  in  vol- 
untary bankruptcy,  shall,  in  the  case  of  a  register  hi  any  district  in  the  city  and 
county  of  New  York,  specify  as  the  place  where  the  register  shall  act  upon  the 
matters  arising  under  the  case,  and  the  warrant,  Form  No.  59,  hi  involuntary  bank- 
ruptcy, shall,  in  a  like  case,  specify  as  the  place  where  the  meeting  of  the  creditors 
will  be  held,  the  office  of  the  register  as  designated  by  him,  by  a  writing  filed  with 
the  clerk.  In  the  case  of  a  register  in  any  district  other  than  one  in  the  city  and 
county  of  New  York,  the  order,  Form  No.  4,  in  voluntary  bankruptcy,  shall  specify 
as  the  place  where  the  register  shall  act  upon  the  matters  arising  under  the  case, 
an  office  of  the  register  as  designated  by  him  in  like  manner,  in  the  county  hi 
which  is  the  place  of  residence  of  the  petitioner,  or  the  place  of  business  of  the  co- 
partnership, corporation,  or  joint-stock  company,  as  set  forth  in  the  petition,  having 
due  regard  always  to  the  proximity  and  convenience  of  such  office  to  such  place  of 
residence  or  place  of  business ;  and,  in  a  like  case,  in  the  warrant,  Form  No.  59,  in 
involuntary  bankruptcy,  the  place  will  be  designated  with  reference  to  the  special 
circumstances  of  the  case. 

The  day  named  in  the  order,  Form  No.  4,  for  the  attendance  of  the  bankrupt 
before  the  register,  in  voluntary  bankruptcy,  and  the  day  named  in  the  wax  rant, 
Form  No.  59,  for  the  meeting  of  creditors,  hi  involuntary  bankruptcy,  will  be  fixed 
with  reference  to  the  convenient  and  speedy  progress  of  the  case. 


BT7LES  IK  BANKRUPTCY.  299 

Every  register  in  a  district  other  than  the  city  and  county  of  New  York  shall, 
by  a  writing  filed  with  the  clerk,  designate  the  days  on  which  he  will  attend  at  a 
place  or  places  within  each  county  in  his  district. 

Every  register  may,  in  any  case  referred  to  him,  fix  the  times  when  he  will  act 
upon  the  several  matters  arising  under  such  case,  other  than  the  attendance  of  the 
bankrupt,  as  fixed  by  the  order,  Form  No.  4,  and  the  meeting  of  creditors  as  fixed 
by  the  warrant,  Form  No.  59 ;  but  the  register  shall  not,  without  leave  of  the  court, 
be  at  liberty  to  change  the  place  specified  in  the  order,  Form  No.  4,  or  to  act  upon 
the  matters  arising  under  a  case  in  involuntary  bankruptcy  at  any  other  place  than 
the  one  specified  in  the  warrant,  Form  No.  59,  as  the  place  for  the  meeting  of 
creditors. 

Bole  2.  —  The  adjudication  of  bankruptcy,  Form  No.  58,  shall  contain  a  pro- 
vision that  the  case  be  referred  to  one  of  the  registers,  naming  him,  to  take  such 
proceedings  thereon  as  are  required  by  the  act. 

Rule  3. — Whenever  a  petition  is  referred  to  a  register  hi  a  voluntary  case, 
and  whenever,  in  an  involuntary  case,  an  order  is  made  on  an  adjudication  of  bank- 
ruptcy, referring  the  case  to  a  register,  the  clerk  at  the  time  he  sends  or  delivers  to 
the  register  a  copy  of  the  order  of  reference,  shall  pay  to  him  the  sum  of  fifteen 
dollars  out  of  the  fifty  dollars  deposited  with  the  clerk,  under  Section  47  of  the 
act,  the  same  to  be  applied  to  the  payment  of  such  fees  of  the  register  as  are 
chargeable  to  the  petitioner  making  the  deposit.  Whenever  by  a  return  made  to 
the  court,  under  oath,  by  the  register,  of  the  fees  so  chargeable  for  services  ren- 
dered by  him,  it  shall  appear  that  the  aggregate  amount  of  such  fees  exceeds  the 
aggregate  payments  made  thereon  to  the  register  out  of  the  fifty  dollars,  the  clerk 
shall,  if  requested  by  the  register,  make  further  payments  to  him  thereon  to  the 
amount  of  such  fees,  until  the  fifty  dollars  shall  all  of  it  be  paid  out,  and  thereafter 
the  fees  of  the  register  which  are  chargeable  to  such  petitioner  shall  be  paid  or 
secured  in  like  manner  with  the  other  fees  provided  for  by  Rule  29,  of  the  "  Gen- 
eral Orders  in  Bankruptcy." 

The  foregoing  provisions  of  this  rule  shall  not  apply  to  a  case  of  voluntary 
bankruptcy,  where  under  Rule  30  of  the  "  General  Orders  in  Bankruptcy,"  the 
judge  shall  direct  that  the  fees  and  costs  in  the  case  shall  not  exceed  the  sum  re- 
quired by  the  act  to  be  deposited  with  the  clerk ;  but,  in  every  such  case,  such  of 
the  disbursements  paid  out  by  the  register  and  marshal  for  the  purposes  specified 
in  Rule  12  of  the  "  General  Orders  hi  Bankruptcy,"  and  returned  by  them  under 
oath,  under  said  Rule  12,  as  are  chargeable  to  the  petitioning  debtor,  shall  be  re- 
funded to  them  severally  by  the  clerk  out  of  such  sum ;  and  the  clerk,  marshal,  and 
register  shall  perform  the  duties  required  of  them  by  such  petitioning  debtor  with- 
out first  requiring  payment  or  security  for  their  fees,  subject  to  the  application  by 
the  court  to  such  fees,  of  so  much  of  such  sum  as  shall  remain  after  refunding  such 
disbursements. 

Ordered,  That  Rule  3  of  the  Rules,  Orders,  and  Regulations,  in  Bankruptcy, 
21 


300  BANKRUPTCY. 

prescribed  by  this  court,  June  22,  1867,  be  amended  by  striking  out  the  word 
"fifteen,"  and  inserting  the  word  "twenty-five,"  and  by  striking  out  the  words 
"  under  oath,"  where  they  first  occur  in  said  rule. 
Passed  July  1,  A.D.  1867. 

Bule  4.  —  The  register  shall,  under  Rule  7  of  the  "  General  Orders  in  Bank- 
ruptcy," examine  the  duplicate  copy  of  the  petition  and  schedules  specified  in  Form 
No.  4,  and  such  duplicate  copy  shall  either  be  a  copy  of  such  filed  original,  cer- 
tified by  the  clerk  under  the  seal  of  the  court,  or  else  a  duplicate  original,  signed 
and  verified  in  like  manner  with  the  original  petition  and  schedules  filed  with  the 
clerk,  and  shown  by  evidence  satisfactory  to  the  register  to  be  such  duplicate  origi- 
nal ;  and  the  certificate  of  the  register,  required  by  said  Rule  7,  as  to  the  correct- 
ness in  form  of  the  petition  and  schedules,  shall  be  made  in  writing,  and  be  signed 
by  him,  on  the  duplicate  copy  which  he  so  examines ;  and  he  shall  not  issue  any 
warrant  under  Form  No.  6,  until  he  shall  have  so  made  a  certificate,  after  such  ex- 
amination, that  the  petition  and  schedules  are  correct  in  form.  No  such  certificate 
shall  be  made  unless  the  whole  eleven  of  the  sheets  composing  schedules  A  and  B, 
in  Form  No.  1,  form  part  of  the  schedules  to  the  petition. 

Rule  5.  —  The  warrant  issued  under  Section  11  or  Section  42  of  the  act,  ac- 
cording to  Form  No.  6  or  Form  No.  59,  shall  specify  two,  if  there  be  two,  and  if 
not,  then  one  of  the  newspapers  named  in  Rule  21,  published  in  the  county  stated 
in  the  petition  as  the  one  in  which  the  debtor,  whether  an  individual,  a  copartner- 
ship, a  corporation,  or  a  joint-stock  company,  has  resided  or  carried  on  business  for 
the  six  months  next  immediately  preceding  the  time  of  filing  the  petition,  or  for  tho 
longest  period  during  such  six  months,  the  selection  of  such  newspapers  to  be  made 
by  the  petitioner,  or  his  attorney,  or,  in  default  thereof,  by  the  register  to  whom  the 
petition  or  case  is  referred;  but  in  the  city  and  county  of  New  York,  one  of  them 
shall  be  a  morning  paper,  and  one  an  evening  paper.  The  notices  to  be  published 
in  pursuance  of  the  warrant  shall  be  published  twice  in  each  newspaper  selected. 

The  warrant  shall  designate  the  creditors  on  whom  personal  service  is  to  be 
made,  and  notice  shall  be  served  by  mail  upon  all  creditors  other  than  those  so 
designated.  No  creditor  resident  out  of  this  district  shall  be  designated  for  per- 
sonal service. 

Whenever  a  debtor  shall  furnish,  at  his  own  expense,  to  the  marshal,  printed 
copies  of  the  notices  required  to  be  served  by  the  warrant,  no  fee  shall  be  allowed 
to  the  marshal  for  copying  into  the  notices  the  names  and  places  of  residences  of 
the  creditors,  and  the  amounts  of  their  debts. 

The  warrant,  Form  No.  6,  shall  oe  regarded  as  process  under  Rule  2  of  the 
"  General  Orders  in  Bankruptcy,"  and  such  warrant  shall,  before  it  is  issued  to  the 
marshal,  La  addition  to  being  signed  by  the  clerk,  and  sealed  with  the  seal  of 
the  court,  be  signed  by  the  judge  or  the  register  at  the  foot  thereof,  in  the  follow- 
ing form,  with  the  date :  "  Issued  by  me,  18  ,  District 
fudge  [or  Register  in  Bankruptcy."] 


RULES  IN  BANKRUPTCY.  301 

Whenever  the  order  Form  No.  10  is  used  by  a  register,  the  conclusion  of  said 
Form  may  be  varied  so  that  the  order  may  be  attested  or  signed  by  the  register 
alone. 

Ordered,  That. Rule  5  of  said  Rules,  Orders,  and  Regulations,  be  amended  by 
striking  out  the  words  "by  the  petitioner  or  his  attorney,  or  in  default  thereof;" 
and  also  by  striking  out  the  words  "  but  in  the  city  and  county  of  New  York,  one 
of  them  shall  be  a  morning  paper,  and  one  an  evening  paper." 

Passed  July  1,  A.D.  1867. 

Hule  6.  —  All  proofs  of  debt  which  shall  be  made  and  verified  prior  to  the  elec- 
tion or  appointment  of  an  assignee  shall  be  delivered  or  sent  to  the  register  to 
whom  the  case  is  referred.  If  the  register  entertains  doubts  of  the  validity  of  any 
claim,  or  of  the  right  of  a  creditor  to  prove  it,  and  is  of  opinion  that  such  validity 
or  right  ought  to  be  investigated  by  the  assignee,  he  may  postpone  the  proof  of  the 
claim  until  the  assignee  is  chosen. 

Rule  7.  —  In  case  no  choice  of  an  assignee  is  made  by  the  creditors  at  theii 
first  meeting,  or  in  case  an  assignee,  chosen  by  the  creditors,  fails  within  five  day. 
to  express  in  writing  his  acceptance  of  the  trust,  or  in  case  of  a  vacancy  in  the 
office  of  an  assignee,  caused  by  his  removal,  resignation,  death,  or  other  cause,  Johr 
Sedgwick,  Esquire,  of  the  city  of  New  York,  counsellor  at  law,  will  be  appointed 
assignee  where  the  judge  is  required  by  the  act  to  appoint  the  assignee,  and  also 
where  the  assignee  is  appointable  by  the  register,  subject  to  the  approval  of  the 
judge.  In  special  cases,  vacancies  in  the  office  of  assignee  will  be  filled  by  an 
election  by  the  creditors. 

Ordered,  That  Rule  7  of  said  Rules,  Orders,  and  Regulations,  be  amended  by 
striking  out  the  words  "  also  where  the  assignee  is  appointable  by  the  register  sub- 
ject to  the  approval  of  the  judge,"  and  inserting  instead  the  following:  "where 
the  said  John  Sedgwick  shall  be  appointed  by  any  register,  such  appointment  is 
hereby  approved  by  the  judge ; "  and  also  by  striking  out  the  last  sentence,  and 
inserting  instead  the  following :  "  In  special  cases,  vacancies  in  the  office  of  as- 
signee will  be  filled  by  an  election  by  the  creditors,  or  by  the  appointment  of  an 
assignee  other  than  the  one  above  named." 

Passed  July  1,  A.D.  1867. 

Hule  8.  —  Under  Rule  9  of  the  "  General  Orders  in  Bankruptcy,"  an  assignee 
shall  notify  the  register  of  his  acceptance  or  rejection  of  the  trust,  and  the  register 
shall  immediately,  on  receiving  such  notice,  report  it  to  the  clerk  of  the  court. 

Hule  9.  —  Every  assignee  shall,  immediately  on  receiving  an  assignment  of  an 
estate  in  bankruptcy,  send  or  deliver  such  assignment  to  the  clerk  of  the  court,  who 
shall  make  a  true  copy  of  it,  and  certify  such  copy  under  his  hand  and  the  seal  of 
the  court ;  and  such  certified  copy  shall  then  be  placed  by  him  on  file,  and  the  origi- 
nal assignment  shall  be  returned  to  the  assignee. 


302  BANKRUPTCY. 

Rule  10.  —  Notice  of  the  appointment  of  an  assignee  shall  be  given  by  publi- 
cation once  a  week  for  three  successive  weeks  in  two  of  the  newspapers  named  in 
Rule  21,  at  least  one  of  which  shall  be  a  newspaper  published  in  the  city  and 
county  of  New  York;  such  newspapers  to  be  selected  by  the  assignee  with  due 
regard  to  the  requirements  of  Section  14  of  the  act. 

Ordered,  That  Rule  10  of  said  Rules,  Orders,  and  Regulations,  be  amended  by 
striking  out  the  word  "  assignee,"  where  it  last  occurs,  and  inserting  instead  the 
word  "  register." 

Passed  July  1,  A.D.  1867. 

Rule  11.  —  Notices  of  sale  by  an  assignee  under  Rule  21  of  the  "  General  Or- 
ders hi  Bankruptcy,"  shall  be  advertised  in  two,  if  there  be  two,  and  if  not,  then  in 
one  of  the  newspapers  named  in  Rule  21,  published  in  the  county  where  the  sale 
is  to  take  place,  the  selection  of  such  newspapers  to  be  made  by  the  assignee ;  but 
hi  the  city  and  county  of  New  York,  one  of  them  shall  be  a  morning  paper,  and 
one  an  evening  paper. 

Ordered,  That  Rule  11  of  said  Rules,  Orders,  and  Regulations,  be  amended  by 
striking  out  the  words  "  assignee ;  but  in  the  city  and  county  of  New  York,  one  of 
them  shall  be  a  morning  paper,  and  one  an  evening  paper,"  and  inserting  instead 
the  word  "  register." 

Passed  July  1,  A.D.  1867. 

Rule  12.  —  The  notice  to  creditors  of  dividends  or  meetings  required  by  the 
17th,  27th,  and  28th  Sections  of  the  act,  shall  be  such  as  is  provided  for  by  the 
order  contained  in  Form  No.  28;  and  the  assignee  shall  select  one  newspaper, 
in  which  the  notice  shall  be  published,  from  among  the  newspapers  specified  in 
Rule  21. 

Ordered,  That  Rule  12  of  said  Rules,  Orders,  and  Regulations,  be  amended  by 
striking  out  the  word  "  assignee,"  and  inserting  instead  the  word  "  register." 

Passed  July  1,  A.D.  1867. 

Rule  13.  —  The  list  of  debts  provided  for  by  Section  23  of  the  act  shall  be 
made  and  certified  by  the  register  to  whom  the  petition  or  case  is  referred,  and  he 
shall  place  thereon  all  debts  which  are  duly  proved. 

Rule  14.  —  The  assignee  shall,  under  Section  27  of  the  act,  produce  and  file 
vouchers  for  all  payments  made  by  him,  except  as  to  items  in  regard  to  which  the 
court  shall,  for  reasonable  cause,  dispense  with  vouchers. 

Rule  15.  —  The  notice  by  the  assignee,  under  Section  28  of  the  act,  of  the 
filing  of  his  account,  and  of  his  application  for  a  settlement  and  discharge,  shall 
be  given  by  him  by  sending  written  or  printed  notices  by  mail,  prepaid,  of  such 
filing,  and  of  the  tune  of  such  application,  to  all  known  creditors  of  the  bank- 
rupt. 


RULES  IN  BANKRUPTCY.  303 

Rule  16.  —  All  questions  for  trial  or  hearing,  under  Sections  31  and  34  of  the 
act,  shall  be  tried  or  heard  at  a  stated  session  of  the  court,  on  four  days'  notice  of 
trial  or  hearing,  to  be  served  by  either  party  upon  the  other  party,  and  upon  the 
clerk  ;  and  a  calendar  of  the  same  shall  be  made. 

Rule  16  of  this  Court  hi  Bankruptcy  is  hereby  amended  so  as  to  read  as  fol- 
lows :  — 

All  questions  for  trial  or  hearing  under  Sections  31  and  34  of  the  act,  and  all 
questions  under  Section  41  of  the  act,  which  are  not  ordered  to  be  tried  by  a  jury, 
shall  be  brought  on  upon  testimony  taken  before  a  register,  a  commissioner,  or  a 
referee,  and  shall  be  tried  or  heard  by  the  court,  and  will  be  so  tried  or  heard  on 
any  Saturday  in  term,  at  a  stated  session  of  the  court,  on  four  days'  notice  of  trial 
or  hearing,  to  be  served  by  either  party  upon  the  other  party,  and  upon  the  clerk, 
and  a  separate  calendar  of  the  same  shall  be  made  by  the  clerk  for  every  Saturday 
in  the  term,  on  which  the  cases  shall  be  arranged  in  the  order  in  which  the  same 
are  numbered,  according  to  General  Order  No.  1. 

Passed  Feb.  21,  A.D.  1868. 

Rule  17.  —  The  application,  under  Section  34  of  the  act,  to  set  aside  and  an- 
nul a  discharge,  shall  be  verified  by  the  oath  or  affirmation  of  the  applicant,  and 
the  answer  of  the  bankrupt  to  the  application  shall  answer  specifically  the  allega- 
tions of  the  application,  and  shall  be  verified  in  like  manner. 

Rule  18.  —  The  demand  hi  writing  for  a  trial  by  jury,  under  Section  41  of  the 
act,  shall  be  signed  by  the  debtor  or  his  attorney. 

Rule  19.  —  All  issues,  questions,  points,  and  matters  stated  in  writing,  under 
Rule  11  of  the  "  General  Orders  in  Bankruptcy,"  or  under  the  4th  Section  or  the 
6th  Section  of  the  act,  or  according  to  Form  No.  50,  and  adjourned  into  court  for 
decision,  or  stated  in  a  special  case  for  the  opinion  of  the  court,  shall  be  certified  to 
the  judge  by  the  register  by  a  certificate,  which  shall  also  state  briefly  the  opinion 
of  the  register  on  the  issue,  question,  point  or  matter,  and  shall  be  delivered  or  sent 
to  the  clerk ;  and  no  oral  or  written  argument  shall  be  allowed  on  any  such  issue 
or  question,  unless  by  special  leave  of  the  court. 

Rule  20.  —  In  pursuance  of  Rule  28  of  the  "  General  Orders  in  Bankruptcy," 
the  following  National  Banks  in  this  district  are  designated  as  those  in  which  all 
moneys  received  by  assignees  or  paid  into  court  in  the  course  of  any  procee  lings  in 
bankruptcy  shall  be  deposited,  namely :  — 

The  list  of  banks  is  here  omitted,  as  is  the  list  of  newspapers  in 
the  next  rule ;  as  they  must  necessarily  be  different  in  the  different 

States. 

All  moneys  received  by  the  clerk  of  the  court  on  account  of  any  bankrupt  estate, 
or  paid  into  court  hi  the  course  of  any  proceedings  hi  bankruptcy  (except  the  sums 


304  BANKRUPTCY. 

deposited  with  the  clerk  under  Section  47  of  the  act),  shall  be  deposited  in  said 
bank  in  the  city  and  county  of  New  York ;  and  all  sums  received  by  an  assignee 
on  account  of  any  estate  of  which  he  is  assignee  shall  be  deposited  in  such  one  of 
said  banks  as  he  shall  select  by  a  writing  to  be  signed  by  him,  and  filed  with  the 
clerk.  The  check,  or  warrant,  for  drawing  moneys  deposited  by  the  clerk,  shall  be 
signed  by  the  clerk,  and  countersigned  by  the  judge.  The  check,  or  warrant,  for 
drawing  moneys  deposited  by  an  assignee,  shall  be  signed  by  him,  and  counter- 
signed by  the  register  designated  to  act  in  the  case  of  the  estate  on  account  of 
which  such  moneys  were  deposited. 

Rule  2L  —  The  following  newspapers  are  designated  as  those  in  which  all  pub- 
lications required  by  the  act,  or  the  "  General  Orders  in  Bankruptcy,"  or  these  rules, 
may  be  made,  namely :  —  (the  names  of  the  newspapers  are  here  omitted.') 

The  marshal  and  the  clerk,  and  every  register  or  assignee,  when  required  to  pub- 
lish any  notice  or  advertisement,  shall  preserve  and  return  to  the  court  a  copy,  cut 
from  each  newspaper  in  which  it  is  published,  of  each  notice  and  advertisement  as 
published,  with  a  certificate  as  to  the  particulars  of  the  publishing,  showing  that  the 
required  publication  has  been  made. 

Rule  22. —  In  case  of  the  absence  of  the  judge  at  the  tune  and  place  noticed 
or  appointed  for  any  hearing  or  proceeding  before  him  in  bankruptcy,  or  if  the  mat- 
ter then  fails  to  be  called  or  acted  on,  the  same  shall  be  deemed  continued,  without 
other  order,  to  the  next  sitting  of  the  court  thereafter,  at  which  time  the  like  pro- 
ceedings may  be  had  thereupon  as  if  first  noticed  or  appointed  for  such  day. 

Rule  23.  — If  the  marshal  shall,  under  Rule  13  of  the  "General  Orders  in 
Bankruptcy,"  appoint  special  deputies  to  act  as  messengers,  he  shall,  as  far  as  pos- 
sible, designate  one  or  more  of  such  special  deputies  to  be  attached  to  the  office  of 
each  register,  for  the  purpose  of  causing  the  notices  to  be  published  and  served 
which  are  specified  in  the  warrants  issued  in  the  cases  referred  to  such  register. 

Rule  24.  —  All  notices  served  or  sent  by  mail  by  the  marshal,  the  clerk,  or  an 
assignee,  shall  be  so  written  or  printed  and  folded,  that  the  direction,  postage-stamp, 
and  post-mark  shall  be  upon  the  notice  itself,  and  not  upon  an  envelope  or  other 
separate  piece  of  paper. 

Rule  25.  —  Special  cases  not  comprehended  within  the  foregoing  Rules,  or 
the  "  General  Orders  in  Bankruptcy,"  or  the  Forms,  shall  be  submitted  to  the 
judge. 


GENERAL  PRINCIPLES  OF  THE  LAW  OF  PLACE.  305 

CHAPTER  XXIY. 

TECB    3LiA.W    OF 


SECTION  I. 

WHAT   IS   MEANT   BY    THE    LAW    OF   PLACE. 

IF  either  of  the  parties  to  a  contract  is  not  at  home,  or  if  both  are 
not  at  the  same  home,  when  they  enter  into  the  contract,  or  if  it  is 
to  be  executed  abroad,  or  if  it  comes  into  litigation  before  a  foreign 
tribunal,  then  the  rights  and  the  obligations  of  the  parties  may  be 
affected  either  by  the  law  of  the  place  of  the  contract,  or  by  the  law 
of  the  domicil  or  home  of  a  party,  or  by  the  law  of  the  place  where 
the  thing  is  situated  to  which  the  contract  refers,  or  by  the  law  of 
the  tribunal  before  which  the  case  is  litigated.  All  of  these  are 
commonly  included  in  the  Latin  phrase  lex  loci,  or,  as  the  phrase  is 
translated,  the  Law  of  Place. 

It  is  obvious  that  this  law  must  be  of  great  importance  wherever 
citizens  of  distinct  nations  have  much  commercial  intercourse  with 
each  other.  In  this  country  it  has  an  especial  and  very  great  im- 
portance, from  the  circumstance  that,  while  the  citizens  of  the  whole 
country  have  at  least  as  much  business  connection  with  each  other 
as  those  of  any  other  nation,  our  country  is  composed  of  thirty-six 
separate  and  independent  sovereignties,  which  are,  for  most  com- 
mercial purposes,  regarded  by  the  law  as  foreign  to  each  other. 


SECTION  IL 
THE    GENERAL  PRINCIPLES    OP   THE    LAW   OF   PLACE. 

THE  general  principles  upon  which  the  law  of  place  depends  are 
four.     First,  every  sovereignty  can  bind,  by  its  laws,  all  persons  and 


306  THE  LAW  OI   PLACE. 

all  things  within  the  limits  of  the  State.  Second,  no  law  has  any  force 
or  authority  of  its  own,  beyond  those  limits.  Third,  by  the  comity  or 
courtesy  of  nations,  —  aided  in  our  case,  as  to  the  several  States,  by 
the  peculiar  and  close  relation  between  the  States,  and  for  some  pur- 
poses by  a  constitutional  provision,  —  the  laws  of  foreign  States  have 
a  qualified  force  and  influence. 

The  fourth  rule  is  perhaps  that  of  the  most  frequent  application. 
It  is,  that  a  contract  which  is  not  valid  where  it  is  made  is  valid 
nowhere  else ;  and  one  which  is  valid  where  it  is  made  is  valid 
everywhere.  Thus  a  contract  made  in  Massachusetts,  and  there 
void  because  usurious,  was  sued  in  New  Hampshire  and  held  to  be 
void  there,  although  the  law  of  New  Hampshire  would  not  have 
avoided  it  if  it  had  been  made  there.  But  courts  do  not  take  notice 
of  foreign  revenue  laws,  and  will  enforce  foreign  contracts  made  in 
violation  of  them.  If  contracts  are  made  only  orally,  where  by  law 
they  should  be  in  writing,  they  cannot  be  enforced  elsewhere 'where 
writing  is  not  required  ;  but  if  made  orally  where  writing  is  not  re- 
quired, they  can  be  enforced  in  other  countries  where  such  contracts 
should  be  in  writing.  The  rule,  that  a  contract  which  is  valid 
where  it  is  made  is  valid  everywhere,  is  applicable  to  contracts  of 
marriage. 

As  contracts  relate  either  to  movables  or  immovables,  or,  to  use 
the  phraseology  of  our  own  law,  to  personal  property  or  to  real 
property,  the  following  distinction  is  taken.  If  the  contract  refers 
to  personal  property  (which  never  has  a  fixed  place,  and  is  there- 
fore called,  in  some  systems  of  law,  movable  property),  the  place  of 
the  contract  governs  by  its  law  the  construction  and  effect  of  the 
contract.  But  if  the  contract  refers  to  real  property,  it  is  construed 
and  applied  by  the  law  of  the  place  where  that  real  property  is 
situated,  without  reference,  so  far  as  the  title  is  concerned,  to  the 
law  of  the  place  of  the  contract.  Hence,  the  title  to  laud  can  only 
be  given  or  received  as  the  law  of  the  place  where  the  land  is  situated 
requires  and  determines.  And  it  has  been  said  that  the  same  rule 
may  properly  apply  to  all  other  local  stock  or  funds,  although  of  a 
personal  nature,  or  so  made  by  the  local  law,  such  as  bank  stock, 
insurance  stock,  manufacturing  stock,  railroad  shares,  and  other 
incorporeal  property,  owing  its  existence  to,  or  regulated  by,  pecu- 


THE  PLACE  OF  THE  CONTRACT.  307 

liar  local  laws ;  and  therefore  no  effectual  transfer  can  be  made  of 
such  property,  except  in  the  manner  prescribed  by  the  local  regu- 
lations. 

As  to  the  capacity  of  a  person  to  enter  into  contracts,  it  is  undoubt- 
edly the  general  rule,  that  this  is  determined  by  the  law  of  his 
domicil ;  and  whatever  that  permits  him  to  do  he  may  do  anywhere. 


SECTION  IIL 

THE    PLACE    OF    THE    CONTRACT. 

A  CONTRACT  is  made  when  both  parties  agree  to  it,  and  not  before. 
It  is  therefore  made  where  both  parties  agree  to  it,  if  this  is  one 
place.  But  if  the  contract  be  made  by  letter,  or  by  separate  signa- 
tures to  an  instrument,  the  contract  is  then  made  where  that 
signature  is  put  to  it,  or  that  letter  is  written,  which  in  fact  com- 
pletes the  contract.  But  this  rule  is  subject  to  a  very  important 
qualification,  when  the  contract  is  made  in  one  place,  and  is  to  be 
performed  in  another  place  ;  for  then,  in  general,  the  law  of  this  last 
place  must  determine  the  force  and  effect  of  the  contract,  for  the 
obvious  and  strong  reason,  that  parties  who  agreed  that  a  certain 
thing  should  be  done  in  a  certain  place  intended  that  a  thing  should 
be  done  there,  which  was  lawful  there,  and  therefore  bargained  with 
reference  to  the  laws  of  the  place,  not  in  which  they  stood,  but  in 
which  they  were  to  act.  This  principle  has  been  applied  to  an 
antenuptial  contract,  and  it  was  held,  that  when  parties  marry  in 
reference  to  the  laws  of  another  country  as  their  intended  domicil, 
the  law  of  the  intended  domicil  governs  the  construction  of  their 
marriage-contract  as  to  the  rights  of  personal  property. 

But,  for  many  commercial  transactions,  both  of  these  rules  seem 
to  be  in  force  ;  or  rather  to  be  blended  in  such  a  way  as  to  give  the 
parties  an  option  as  to  what  shall  be  the  place  of  the  contract,  and 
what  the  rule  of  law  which  shall  apply  to  it.  Thus,  a  note  written  in 
New  York,  and  expressly  payable  in  New  York,  is,  to  all  intents  and 
purposes,  a  New- York  note ;  and  if  more  than  seven  per  cent  interest 
was  promised,  it  would  be  usurious,  whatever  was  the  domicil  of  the 
parties.  If  made  in  New  York,  and  110  place  of  payment  is  expressed, 


308  THE  LAW  OF  PLACE. 

it  is  payable  and  may  be  demanded  anywhere,  but  would  still  be  a 
New-York  note.  But  if  made  in  New  York,  but  expressly  payable 
in  Boston  (where  any  amount  of  interest  may  be  agreed  for),  and 
promised  to  pay  ten  per  cent  interest,  when  payment  of  the  note  was 
demanded  in  Boston,  the  promise  of  interest  would  be  held  valid. 
So,  if  the  note  were  made  in  New  York,  payable  in  Boston,  and 
promising  to  pay  ten  per  cent  interest,  it  would  not  be  usurious. 

In  other  words,  if  a  note  is  made  in  one  place,  but  is  payable  in 
another,  the  parties  have  their  option  to  make  it  bear  the  interest 
which  is  lawful  in  either  place. 

If  the  contract  be  entered  into  for  money,  and  is  made  in  one  place 
but  is  payable  at  another  place  on  a  day  certain,  and  no  interest  be 
stipulated,  and  payment  be  delayed,  interest  by  way  of  damages  shall 
be  allowed,  according  to  the  law  of  the  place  of  payment,  where  the 
money  may  be  supposed  to  have  been  required  by  the  creditor  for 
use,  and  where  he  might  be  supposed  to  have  borrowed  money  to 
supply  the  deficiency  thus  occurring,  and  to  have  paid  the  rate  of 
interest  of  that  country.  If  a  note  made  in  New  York  and  payable 
in  Massachusetts  were  demanded  in  Massachusetts  and  unpaid,  and 
afterwards  put  in  suit  in  Massachusetts,  and  personal  service  made  on 
the  promisor  there,  I  should  say  that  any  interest  which  it  bore  should 
be  recovered,  provided  it  were  lawful  in  Massachusetts.  And  indeed, 
generally,  that  such  a  note,  being  made  in  good  faith,  might  always 
bear  any  interest  lawful  where  it  was  payable.  But  a  note  made  in 
a  State  where  the  law  permitted  only  a  low  interest,  and  intended 
in  fact  to  be  paid  in  that  State,  but  written  payable  in  some  State 
permitting  higher  interest,  merely  to  get  this  higher  interest,  could 
not  by  this  trick  escape  the  usury  laws  of  the  State  where  it  was 
made,  and  get  the  higher  interest. 


SECTION  IV. 
DOBUCIL. 

IT  is  sometimes  very  important  to  determine  where  a  person 
has  his  domicil,  or  HOME.     In  general,  it  is  his  residence  ;  or  that 


DOMICIL.  309 

country  in  which  he  permanently  resides.  He  may  change  it  by  a 
change  of  place  both  in  fact  and  in  intent,  but  not  by  either  alone. 
Thus,  a  citizen  of  New  York,  going  to  London  and  remaining  there 
a  long  time,  but  without  the  intention  of  relinquishing  his  home  in 
New  York,  does  not  lose  that  home.  And,  if  he  stays  in  New  York, 
his  intention  to  live  and  remain  abroad  does  not  affect  his  domicil 
until  he  goes  in  fact. 

He  may  have  his  legal  domicil  in  one  place,  and  yet  spend  a  very 
large  part  of  his  time  in  another.  But  he  cannot  have  more  than 
one  domicil.  His  words  or  declarations  are  not  the  only  evidence 
of  his  intent ;  and  they  are  much  stronger  evidence  when  against 
his  interest,  than  when  they  are  in  his  favor.  Thus,  one  goes  from 
Boston  to  England.  If  he  goes  intending  not  merely  to  travel,  but 
to  change  his  residence  permanently,  and  not  to  return  to  this  coun- 
try unless  as  a  visitor,  he  changes  his  domicil  from  the  day  that  he 
leaves  this  country.  Let  us  suppose,  however,  that  he  is  still 
regarded  by  the  assessors  as  residing  in  Boston,  although  travelling 
abroad,  and  is  heavily  taxed  accordingly.  If  he  can  prove  that  he 
has  abandoned  his  original  home,  he  escapes  from  the  tax  which  he 
must  otherwise  pay.  Now,  his  declarations  that  he  has  no  longer  a 
home  here,  and  that  his  residence  is  permanently  fixed  in  England, 
and  the  like,  would  be  very  far  from  conclusive  in  his  favor,  and 
could  indeed  be  hardly  received  as  evidence  at  all,  unless  they  were 
confirmed  by  facts  and  circumstances.  But  if  it  could  be  shown 
that  he  had  constantly  asserted  that  he  was  still  an  American,  that 
he  had  no  other  permanent  residence,  no  home  but  that  which  he 
had  temporarily  left  as  a  traveller,  such  declarations  would  be 
almost  conclusive  against  him.  In  general,  such  a  question  would 
be  determined  by  all  the  words  and  acts,  the  arrangement  of  proper- 
ty at  home,  the  length  and  the  character  of  the  residence  abroad, 
and  all  the  acts  and  circumstances  which  would  indicate  the  actual 
intention  and  understanding  of  the  party. 

Two  cases  have  occurred  in  the  city  of  Boston,  which  illustrate 
this  question.  In  one,  a  citizen  of  Boston,  who  had  been  at  school 
in  the  city  of  Edinburgh  when  a  boy,  and  formed  a  predilection  for 
that  place  as  a  residence,  and  had  expressed  a  determination  to  re- 
side there  if  he  ever  should  have  the  means  of  so  doing,  removed 


310  THE  LAW  OF  PLACE. 

with  his  family  to  that  city,  in  1836,  declaring,  at  the  time  of  his 
departure,  that  he  intended  to  reside  abroad,  and  that,  if  he  should 
return  to  the  United  States,  he  should  not  live  in  Boston.  He 
resided  in  Edinburgh  and  vicinity,  as  a  housekeeper,  taking  a  lease 
of  an  estate  for  a  term  of  years,  and  endeavored  to  engage  an  Amer- 
ican to  enter  his  family  for  two  years,  as  instructor  of  his  children. 
Before  he  left  Boston,  he  made  a  contract  for  the  sale  of  his  man- 
sion-house and  furniture  there,  but  shortly  afterward  procured  said 
contract  to  be  annulled  (assigning  as  his  reason  therefor,  that,  in 
case  of  his  death  in  Europe,  his  wife  might  wish  to  return  to  Bos- 
ton), and  let  his  house  and  furniture  to  a  tenant.  Held,  that  he 
had  changed  his  domicil,  and  was  not  liable  to  taxation  as  an  inhab- 
itant of  Boston  in  1837.  In  the  other  case,  a  native  inhabitant  of 
Boston,  intending  to  reside  in  France,  with  his  family,  departed  for 
that  country  in  June,  1836,  and  was  followed  by  his  family  about 
three  months  afterwards.  His  dwelling-house  and  furniture  were 
leased  for  a  year,  and  he  hired  a  house  for  a  year  in  Paris.  At  the 
time  of  his  departure  he  intended  to  return  and  resume  his  residence 
in  Boston,  but  had  not  fixed  on  any  time  for  his  return.  He  re- 
turned in  about  sixteen  months,  and  his  family  in  about  nine 
months  afterwards.  Held,  that  he  continued  to  be  an  inhabitant  of 
Boston,  and  that  he  was  rightly  taxed  there,  during  his  absence, 
for  his  person  and  personal  property.  This  last  case  was  distin- 
guished from  the  former,  by  the  different  intent  of  the  parties  upon 
their  departure  from  home. 

It  is  a  general  rule,  that,  if  one  has  a  domicil,  he  retains  it  until 
he  acquires  another.  Thus,  if  a  seaman,  without  family  or  prop- 
erty, sails  from  the  place  of  his  nativity,  which  may  be  considered 
his  domicil  of  origin,  although  he  may  return  only  at  long  intervals, 
or  even  be  absent  for  many  years,  yet,  if  he  does  not,  by  some  actual 
residence  or  other  means,  acquire  a  domicil  elsewhere,  he  retains  his 
domicil  of  origin. 

It  seems  to  be  agreed  that  one  may  dwell  for  a  considerable  time, 
and  even  regularly  during  a  large  part  of  the  year,  in  one  place,  or 
even  in  one  State,  and  yet  have  his  domicil  in  another. 

A  woman  marrying  takes  her  husband's  domicil,  and  changes  it 
with  him.  A  minor  child  has  the  domicil  of  his  father,  or  of  his 


THE  OWNERSHIP  AND  TRANSFER  OP  SHIPS.  311 

mother  if  she  survive  his  father ;  and  the  surviving  parent,  with 
whom  a  child  lives,  by  changing  his  or  her  own  domicil  in  good 
faith,  changes  that  of  the  child.  And  even  a  guardian  has  the  same 
power. 


CHAPTER  XXY 

THE    3L.A.TV    OF 


SECTION  I. 
THE  OWNERSHIP  AND  TRANSFER  OF  SHIPS. 

THE  Law  of  Shipping  may  be  considered  under  three  divisions. 
First,  as  to  ownership  and  transfer  of  ships.  Second,  as  to  the  em- 
ployment of  ships  as  carriers  of  goods,  or  of  passengers,  or  both. 
Third,  as  to  the  navigation  of  ships.  I  begin  with  the  first  topic. 

Ships  are  personal  property  ;  or,  in  other  words,  a  ship  is  a  chat- 
tel ;  and  yet  its  ownership  and  transfer  are  regulated  in  this  country 
by  rules  quite  analogous  to  those  which  apply  to  real  property. 

The  Constitution  of  the  United  States  gives  to  Congress  the  power 
to  enact  laws  for  the  regulation  of  commerce.  In  execution  of  this 
power,  acts  were  passed  in  1792,  and  immediately  after,  which  fol- 
lowed substantially  the  Registry  and  Navigation  Laws  of  England, 
some  of  which  had  been  in  force  about  a  century  and  a  half.  The 
English  laws  were  intended  to  secure  English  commerce  to  English 
men  and  English  ships  ;  and  it  was  supposed  that  the  commercial 
prosperity  of  England  was  in  a  great  measure  due  to  them. 

To  secure  the  evidence  of  the  American  character  of  a  vessel,  the 
statute  of  1792  provides  for  an  exact  system  of  registration  in  the 
custom-house.  There  is  no  requirement  of  registration.  The  law 
does  not  say  that  a  ship  shall  or  must  be  registered,  but  that  certain 


312  THE  LAW  OF  SHIPPING 

ships  or  vessels  may  be  ;  and,  if  they  are  registered,  they  shall  ha-^e 
certain  privileges.  And  the  disadvantage  of  being  without  registry 
operates  as  effectually  to  make  registration  universal,  as  a  positive 
requirement  with  a  heavy  penalty  could  do. 

The  ships  which  may  be  registered  are  those  already  registered, 
31  December,  1792,  under  the  act  of  September,  1789  ;  those  built 
within  the  United  States,  and  owned  wholly  by  citizens  thereof ;  and 
those  captured  and  condemned  as  prizes,  or  adjudged  forfeited  by 
violation  of  law,  if  at  the  time  of  registry  they  are  owned  wholly 
by  citizens  of  this  country.  No  ship  can  be  registered,  if  an  owner 
or  part-owner  usually  reside  abroad,  although  he  is  a  citizen,  unless 
he  is  a  consul  of  the  United  States,  or  agent  for,  and  a  partner  in, 
a  mercantile  house  established  and  doing  business  here  ;  nor  if  the 
master  be  not  a  citizen  of  the  United  States  ;  nor  if  the  owner  or 
part-owner  be  a  naturalized  citizen,  and  reside  in  the  country 
whence  he  came  more  than  a  year,  or  in  any  foreign  country  more 
than  two  years,  unless  he  be  consul  or  public  agent  of  the  United 
States.  But  a  ship  which  has  lost  the  benefits  of  registry  by  the 
non-residence  of  an  owner,  in  such  a  case  may  be  registered  anew 
if  she  become  the  property  of  a  resident  citizen,  by  bond  fide  pur- 
chase ;  nor  can  a  ship  be  registered  which  has  been,  at  any  time, 
the  property  of  an  alien,  unless  she  becomes  the  property  of  the 
original  owner  or  his  representative. 

Sometimes  Congress,  by  special  acts,  permits  the  registration,  as 
an  American  ship,  of  a  vessel  which  has  become,  by  purchase, 
American  property.  If  a  registered  American  ship  be  sold  or  trans- 
ferred, in  whole  or  in  part,  to  an  alien,  the  certificate  of  registry 
must  be  delivered  up,  or  the  vessel  is  forfeited  ;  but  if,  in  case  of  a 
sale  in  part,  it  can  be  shown  that  any  owner  of  a  part  not  so  sold 
was  ignorant  of  the  sale,  his  share  shall  not  be  subject  to  such  for- 
feiture. As  soon  as  a  registered  vessel  arrives  from  a  foreign 
port,  her  documents  must  be  deposited  with  the  collector  of  the  port 
of  arrival,  and  the  owner,  or,  if  he  does  not  reside  within  the  dis- 
trict, the  master,  must  make  oath  that  the  register  contains  the 
names  of  all  persons  who  are  at  that  time  owners  of  the  ship,  and 
at  the  same  time  report  any  transfer  of  the  ship,  or  of  any  part,  that 
has  been  made  within  his  knowledge  since  the  registry ;  and  also 


THE  OWNERSHIP  AND  TRANSFER  OF  SHIPS.  313 

declare  that  no  foreigner  has  any  interest  in  the  ship.  If  a  register 
be  issued  fraudulently,  or  with  the  knowledge  of  the  owners,  for  a 
ship  not  entitled  to  one,  the  register  is  not  only  void,  but  the  ship  is 
forfeited.  If  a  new  register  is  issued,  the  old  one  must  be  given 
up ;  but  where  there  is  a  sale  by  process  of  law,  and  the  former 
owners  withhold  the  register,  the  Secretary  of  the  Treasury  may 
authorize  the  collector  to  issue  a  new  one.  If  a  ship  be  transferred 
while  at  sea,  or  abroad,  the  old  register  must  be  given  up,  and  all 
the  requirements  of  law,  as  to  registry,  &c.,  must  be  complied  with, 
within  three  days  after  her  arrival  at  the  home  port. 

Important  exclusive  privileges  have  been  granted  to  regis- 
tered vessels  of  the  United  States.  By  the  statute  of  1817,  it  is 
provided,  that  no  merchandise  shall  be  brought  from  any  foreign 
country  to  this,  except  in  American  vessels,  or  in  vessels  belonging 
to  that  country  of  which  the  merchandise  is  the  growth.  Also,  that 
no  merchandise  shall  be  carried  from  port  to  port  in  the  United 
States,  by  any  foreign  vessel,  unless  it  formed  a  part  of  its  original 
cargo. 

A  ship  that  is  of  twenty  tons'  burden,  to  be  employed  in  the 
fisheries,  or  in  the  coasting-trade,  need  not  be  registered,  but  must 
be  enrolled  and  licensed  accordingly.  If  under  twenty  tons'  bur- 
den, she  need  only  be  licensed.  If  licensed  for  the  fisheries,  she 
may  visit  and  return  from  foreign  ports,  having  stated  her  intention 
of  doing  so,  and  being  permitted  by  the  collector.  And  if  regis- 
tered, she  may  engage  in  the  coasting-trade  or  fishery,  and  if  licensed 
and  enrolled,  she  may  become  a  registered  ship,  subject  to  the  regu- 
lations provided  for  such  cases. 

A  ship  that  is  neither  registered  nor  licensed  and  enrolled  can 
sail  on  no  voyage  with  the  privilege  or  protection  of  a  national  char- 
acter or  national  papers.  If  she  engages  in  foreign  trade,  or  the 
coasting-trade,  or  fisheries,  she  is  liable  to  forfeiture ;  and  if  she 
have  foreign  goods  on  board,  must  at  all  events  pay  the  tonnage- 
duties  leviable  on  foreign  ships.  In  these  days,  no  ship  engaged  in 
honest  business,  and  belonging  to  a  civilized  people,  is  met  with  on 
the  ocean,  without  having  the  regular  papers  which  attest  her  na- 
tionality, unless  she  has  lost  them  by  some  accident. 


814  THE  LAW  OF  SHIPPING. 

SECTION    H. 
THE    TRANSFER   OF   PROPERTY    IN   A   SHIP 

THE  Statute  of  Registration  provides,  that,  "  in  every  case  of  sale 
or  transfer,  there  shall  be  some  instrument  in  writing,  in  the  nature 
of  a  bill  of  sale,  which  shall  recite  at  length  the  said  certificate ; 
otherwise  the  said  ship  or  vessel  shall  be  incapable  of  being 
registered  anew."  It  follows,  therefore,  that  a  merely  oral  transfer, 
although  for  valuable  consideration,  and  followed  by  possession,  gives 
the  transferee  no  right  to  claim  a  new  register  setting  forth  his 
ownership.  But  this  is  all.  There  is  nothing  in  this  statute  to 
prevent  the  property  from  passing  to  and  vesting  in  such  transferee. 
It  is,  however,  unquestionably  a  principle  of  the  maritime  law 
generally,  that  property  in  a  ship  should  pass  by  a  written  instru- 
ment. And  as  this  principle  seems  to  be  adopted  by  the  statute,  the 
courts  have  sometimes  almost  denied  the  validity  of  a  merely  parol 
transfer.  The  weight  of  authority  and  of  reason  is,  however, 
undoubtedly  in  favor  of  the  conclusion  stated  by  Judge  Story,  that 
"  the  registry  acts  have  not,  in  any  degree,  changed  the  common  law 
as  to  the  manner  of  transferring  this  species  of  property."  It  would 
follow,  therefore,  that  such  transfer  would  be  valid,  and  would  pass 
the  property. 

In  1850,  Congress,  however,  passed  an  act,  "  to  provide  for  record- 
ing the  conveyances  of  vessels,  and  for  other  purposes."  By  this 
statute  it  was  provided  "  that  no  bill  of  sale,  mortgage,  hypotheca- 
tion, or  conveyance  of  any  vessel  or  part  of  any  vessel  of  the  United 
States,  shall  be  valid  against  any  person  other  than  the  grantor  or 
mortgagor,  his  heirs  and  devisees,  and  persons  having  actual  notice 
thereof;  unless  such  bill  of  sale,  mortgage,  hypothecation,  or  con- 
veyance be  recorded  in  the  office  of  the  collector  of  the  customs 
where  such  vessel  is  registered  or  enrolled."  Then  follows  an  ex- 
ception in  favor  of  liens  by  bottomry,  and  in  subsequent  sections 
are  provisions  for  recording  by  the  collector,  and  giving  certifi- 
cates, &c. 


THE  TRANSFER  OF  PROPERTY  IN  A  SHIP.  315 

This  statute  has  no  effect,  that  I  perceive,  upon  oral  transfers, 
excepting  that,  as  they  cannot  be  recorded,  their  operation  is 
limited  to  the  grantors  and  those  who  have  actual  notice.  Where 
the  transfer  is  by  bill  of  sale,  the  record  of  this,  under  the  late 
statute,  is  notice  to  all  the  world.  But  in  most  of  our  States  there 
are  already  provisions  for  the  record  of  mortgages  of  personal 
property,  and  the  question  arises  how  these  are  affected  by  this 
statute  of  the  United  States.  I  should  say  that  it  controlled  and 
superseded  the  State  statute,  so  as  to  make  that  unnecessary  and 
ineffectual ;  and  therefore  a  record  in  the  custom-house  only  would 
be  sufficient,  and  a  record  under  the  State  law  would  affect  only 
those  who  had  actual  knowledge  of  it. 

As  a  ship  is  a  chattel,  a  transfer  of  it  should  be  accompanied  by  a 
delivery  of  possession.  Actual  delivery  is  sometimes  impossible 
where  a  ship  is  at  sea ;  and  the  statute  of  1850  makes  the  record 
of  the  transfer  equivalent  to  change  of  possession.  If  there  be  no 
record,  possession  should  be  taken  as  soon  as  possible ;  and  prudence 
would  still  require  the  same  course  in  case  of  transfer  by  writing 
and  record. 

By  the  word  "  ship,"  and  still  more  by  the  phrase  "  ship  and  her 
appurtenances,"  or  "  apparel,"  or  "  furniture,"  every  thing  would 
pass  which  was  distinctly  connected  with  the  ship,  and  is  on  board 
of  her,  and  fastened  to  her  if  that  be  usual,  and  needed  for  her 
navigation  or  for  her.  safety.  Kentledge,  a  valuable  kind  of  perma- 
nent ballast,  has  been  held  to  pass  with  the  ship  ;  so  have  a  rudder 
and  cordage  prepared  for  a  vessel,  but  not  yet  attached  to  her,  and 
not  quite  finished ;  and  so  would  a  boat,  anchors,  &c.,  generally. 
But  the  answer  to  the  question,  What  is  part  of  the  ship  ?  must  al- 
ways depend  somewhat  upon  the  words  of  the  instrument,  and  upon 
the  circumstances  of  the  case  and  the  intention  of  the  parties. 

A  sale  by  the  decree  of  any  regular  court  of  admiralty,  with  due 
notice  to  all  parties,  and  with  proper  precautions  to  protect  the 
interests  of  all,  and  to  guard  against  fraud  or  precipitancy,  would 
undoubtedly  be  acknowledged  by  courts  of  admiralty  of  every  other 
nation  as  transferring  the  property  effectually. 

22 


316  THE  LAW  OF  SHIPPING. 

SECTION  m. 

PART-OYTNERS. 

Two  or  more  persons  may  become  part-owners  of  a  ship,  in  either 
of  three  ways.  They  may  build  it  together,  or  join  in  purchasing  it, 
or  each  may  purchase  his  share  independently  of  the  others.  In 
either  case,  their  rights  and  obligations  are  the  same. 

If  the  register,  or  the  instrument  of  transfer,  or  other  equivalent 
evidence,  do  not  designate  specific  and  unequal  proportions,  they 
will  be  presumed  to  own  the  ship  in  equal  shares. 

Part-owners  are  not  necessarily  or  usually  partners.  But  a  ship, 
or  any  part  of  a  ship,  may  constitute  a  part  of  the  stock  or  capital  of 
a  copartnership  ;  and  then  it  will  be  governed,  in  all  respects,  by  the 
law  of  partnership. 

A  part-owner  may  at  any  time  sell  his  share  to  whom  he  will. 
But  he  cannot  sell  the  share  of  any  other  part-owner,  without  his 
authority.  If  he  dies,  his  share  goes  to  his  representatives,  and  not 
to  the  surviving  part-owners. 

A  majority  of  the  part-owners  may,  generally,  manage  and  direct 
the  employment  of  the  property  at  their  discretion.  But  a  court  of 
admiralty  will  interfere  and  do  justice  between  them,  and  prevent 
either  of  the  part-owners  from  inflicting  injury  upon  the  others. 

One  part-owner  may,  in  the  absence  of  the  rest,  and  without  pro- 
hibition from  them,  manage  the  ship,  as  for  himself  and  for  them. 
And  the  contracts  he  enters  into,  in  relation  to  the  employment  or 
preservation  of  the  ship,  bind  all  the  part-owners  in  favor  of  an 
innocent  third  party. 

In  general,  all  the  part-owners  are  liable,  each  one  for  the  whole 
amount,  for  all  the  repairs  of  a  ship,  or  for  necessaries  actually  sup- 
plied to  her,  in  good  faith.  If  one  pays  his  part  of  what  is  due,  or 
even  more  than  his  share,  and  it  is  agreed  between  him  and  the  cred- 
itor that  he  shall  not  be  held  further,  still,  if  the  others  do  not  pay, 
he  must  pay,  unless  there  is  a  better  consideration  for  the  promise 
'not  to  call  on  him  than  his  merely  paying  a  part  of  what  he  was 
legally  bound  to  pay ;  for  where  a  man  is  bound  to  pay  all,  his  pay- 


PART-OWNERS.  317 

ing  a  part  is  no  consideration  whatever  for  a  promise  to  him.  If  he 
had  a  discharge  under  seal,  it  might  protect  him  at  law,  but  would 
not  in  admiralty,  unless  the  circumstances  of  the  case  made  this 
just. 

If  it  can  be  clearly  shown,  however,  that  especial  credit  was  given, 
and  intended  to  be  given,  to  one  part-owner  personally,  to  the  exclu- 
sion of  the  others,  then  the  others  cannot  be  holden.  If  the  goods 
were  charged  to  "  ship"  so  and  so,  or  to  "  ship  and  owners,"  this 
would  tend  strongly  to  show  that  it  was  intended  to  supply  the  goods 
on  the  credit  of  all  the  owners.  If  charged  to  some  one  owner 
alone,  this  would  not  absolutely  prove  that  credit  was  intentionally 
given  to  him  exclusively.  But  it  would  raise  a  presumption  to  that 
effect  which  could  be  rebutted  only  by  showing  that  no  other  owner 
was  known  ;  or  by  some  other  evidence  which  disproved  the  inten- 
tion of  discharging  the  other  part-owners. 

So,  if  the  note,  negotiable  or  otherwise,  of  one  part-owner  were 
taken  in  payment,  if  the  promisor  refused  to  pay,  the  others  would 
be  liable,  unless  they  could  show  a  distinct  bargain  by  which  they 
were  exonerated. 

Commonly,  the  "  ship's  husband,"  as  the  agent  of  all  the  owners  for 
the  management  of  the  ship  has  long  been  called,  is  one  of  the  part- 
owners.  He  may  be  appointed  in  writing  or  otherwise.  His  duties 
are,  in  general,  to  provide  for  the  complete  equipment  and  repair  of 
the  ship,  and  take  care  of  her  while  in  port ;  to  see  that  she  is  fur- 
nished with  all  regular  and  proper  papers  ;  to  make  proper  con- 
tracts for  freight  or  passage,  and  collect  the  receipts  and  make  the 
disbursements  proper  on  these  accounts.  For  these  things  he  has 
all  the  necessary  powers.  But  he  cannot,  without  special  power, 
insure  for  the  rest,  nor  buy  a  cargo  for  them,  nor  borrow  money, 
nor  give  up  their  lien  on  the  cargo  for  the  freight,  nor  delegate  his 
authority. 

"Where  he  acts  within  his  powers,  a  ship's  husband  binds  all  his, 
principals,  that  is,  all  the  part-owners.  But  a  third  party  may  deal 
with  him  on  his  personal  credit  alone  ;  and  if  the  part-owners,  be- 
lieving this,  and  authorized  to  believe  it  by  any  acts  or  words  of  the 
third  party,  settle  their  accounts  with  the  ship's  husband  accord- 
ingly, this  third  party  cannot  now  establish  a  claim  against  them  to 


318  THE  LAW  OF  SHIPPING. 

their  detriment.  If  a  ship's  husband  is  not  a  part-owner,  all  the 
part-owners  are  liable  to  him,  each  for  the  whole  amount.  If  he  is 
a  part-owner,  each  of  the  others  is  liable  to  him  for  his  share  of  the 
expense  incurred.  The  "  ship's  husband  "  is  called  in  the  Statutes 
of  the  United  States  the  "  managing  owner." 


SECTION    IV. 
THE    UABLLTTT  OF   MORTGAGEES. 

A  MORTGAGEE  of  a  ship,  who  is  in  possession,  is,  in  general,  liable 
for  supplies,  repairs,  &c.,  in  the  same  way  as  an  owner.  But  if  he 
has  not  taken  possession,  he  is  not  liable  for  supplies  or  repairs 
merely  on  the  ground  that  his  security  is  strengthened  by  whatever 
preserves  or  increases  the  value  of  the  vessel.  Nor  can  he  be  made 
liable,  except  by  some  act  or  words  of  his  own,  which  show  that 
credit  was  properly  given  to  him,  or  that  he  has  come  under  a  valid 
engagement  to  assume  this  responsibility. 


SECTION  V. 

THE  CONTRACT  OP  BOTTOMRY. 

BY  this  contract,  a  ship  is  hypothecated  (which  means  pledged) 
as  security  for  money  borrowed.  The  form  of  this  contract  varies 
in  different  places,  and,  indeed,  in  the  same  place.  Its  essentials 
are :  —  First,  that  the  ship  itself  is  bound  for  the  payment  of  the 
money.  Second,  that  the  money  is  to  be  repaid  only  in  case  the  ship 
performs  a  certain  voyage,  and  arrives  at  its  destined  termination 
in  safety  ;  or,  as  it  is  sometimes  provided  in  modern  bottomries, 
in  case  that  the  ship  is  in  safety  on  a  certain  day ;  therefore,  if  the 
ship  is  lost  before  the  termination  of  the  voyage  or  the  expiration 
of  the  period,  no  part  of  the  money  is  due,  or,  as  is  sometimes  said, 
the  whole  debt  is  paid  by  the  loss.  As  the  lender  thus  consents  that 
the  repayment  of  the  money  shall  depend  upon  the  safety  of  the 


THE  CONTRACT  OF  BOTTOMRY.  319 

ship,  he  has  a  legal  right  to  charge  "  marine  interest,"  which  means 
as  much  more  than  legal  interest  as  will  serve  to  cover  his  risk. 

The  lender  may  require,  and  the  borrower  pay,  this  marine  inter 
est,  which  may  be  much  more  than  lawful  interest,  on  a  bottomry 
bond,  without  usury. 

If  the  interest  be  not  expressed  in  the  contract,  it  will  generally 
be  presumed  to  be  meant  and  included  in  the  sum  named  as  princi- 
pal. 

If,  by  the  contract,  the  lender  takes  more  than  legal  interest,  and 
yet  the  money  is  to  be  paid  to  him  whether  the  ship  be  lost  or  not, 
this  is  not  a  contract  of  bottomry,  and  it  is  subject  to  all  the  conse- 
quences of  usury.  But  the  lender  may  take  security  for  his  debt 
and  marine  interest,  additional  to  the  ship  itself,  provided  the 
security  is  given,  like  the  ship  itself,  to  make  the  payment  certain 
when  it  becomes  due  by  the  safety  of  the  ship,  but  is  wholly  avoided 
if  the  ship  be  lost ;  for  then  the  lender  takes  the  risk  of  losing  the 
whole,  principal  and  interest,  by  the  loss  of  the  ship,  and  may  there- 
fore charge  more  than  simple  interest. 

The  most  common  contracts  of  bottomry  are  those  entered  into  by 
the  master  in  a  foreign  port,  where  money  is  needed  and  cannot 
otherwise  be  obtained.  Therefore  the  security  goes  with  the  ship, 
and  the  debt  may  be  enforced,  as  soon  as  it  is  payable,  against  the 
ship,  wherever  the  ship  may  be.  But  in  this  country,  these  contracts 
are  frequently  made  by  the  owner  himself,  in  the  home  port.  And 
sometimes  they  are  nothing  else  than  contrivances  to  get  more  than 
legal  interest.  Thus,  if  A  lends  to  B  $20,000  on  B's  ship  for  one  year, 
at  fifteen  per  cent  interest,  conditioned  that,  if  the  ship  be  lost,  the 
money  shall  not  be  paid,  and  the  lender  insures  the  ship  for  three 
per  cent,  he  gets  twelve  per  cent  interest,  which  may  be  much  more 
than  the  legal  interest,  and  yet  incurs  no  risk.  If  such  a  contract 
were  obviously  and  certainly  merely  colorable,  and  only  a  pretence 
for  getting  usurious  interest,  the  courts  would  probably  set  it 
aside  ;  but  it  might  be  difficult  to  show  this. 

If  the  money  is  payable  at  the  end  of  a  certain  voyage,  and  the 
owner,  or  his  servant  the  master  of  the  ship,  terminate  the  voyage 
sooner,  — either  honestly,  from  a  change  in  their  plan,  or  dishon- 
estly, by  intentional  loss  or  wreck, — the  money  becomes  at  once  due. 


320  THE  LAW  OF  SHIPPING. 

A  bottomry  bond  made  abroad  would  override  all  other  liens  or 
engagements,  except  the  claim  for  seamen's  wages,  and  the  lien  of 
material  men  for  repairs  and  supplies  indispensable  to  the  safety  of 
the  vessel.  The  reason  is,  that  a  bottomry  bond  is  supposed  to  be 
made  from  necessity,  and  to  have  provided  the  only  means  by  which 
the  ship  could  be  brought  home.  For  the  same  reason,  a  later  bond 
is  sustained  as  against  an  earlier,  and  the  last  against  all  before  it. 

The  lien  of  bottomry  depends  in  no  degree  on  possession,  for  the 
ship  may  go  all  over  the  world  with  the  bottomry  security  attached 
to  her ;  but  the  lender  ought  to  collect  the  sum  due,  and  so  dis- 
charge the  bond  as  soon  as  he  conveniently  can ;  and  therefore  an 
unreasonable  delay  in  enforcing  it  will  destroy  the  lien ;  and  any 
connivance  by  the  lender  at  any  fraud  on  the  part  of  the  master 
avoids  the  bond  entirely. 


SECTION  VI. 

THE    EMPLOYMENT    OF    A    SHIP    BY    THE    OWNER. 

AN  owner  of  a  ship  may  employ  it  in  carrying  his  own  goods,  or 
those  of  another.  He  may  carry  the  goods  of  others,  while  he  him- 
self retains  the  possession  and  direction  of  the  ship ;  or  he  may 
lease  his  ship  to  others,  to  carry  their  goods.  In  the  first  case,  he 
carries  the  goods  of  others  on  freight;  in  the  second,  he  lets  his  ship 
by  charter-party.  "We  shall  consider  first  the  carriage  of  goods  on 
freight. 

He  may  load  his  ship  as  far  as  he  can  with  his  own  goods,  and 
then  take  the  goods  of  others  to  fill  the  vacant  space  ;  or  he  may 
put  up  his  ship  as  "  a  general  ship,"  to  go  from  one  stated  port  to 
another,  and  to  carry  the  goods  of  all  who  offer. 

It  may  be  remarked,  that  the  word  "  freight "  is  used  in  different 
ways  ;  sometimes  to  designate  the  goods  or  cargo  that  is  carried ; 
sometimes  to  denote  the  money  which  the  shipper  of  the  goods  pays 
to  the  owner  of  the  ship,  for  their  transportation.  Not  unfrequently, 
when  the  word  is  used  in  this  latter  sense,  the  word  "  money  "  is 
added,  and  the  phrase  "  freight-money  "  leaves  no  question  as  to  what 
is  meant.  Sometimes  a  ship-owner  who  lets  the  whole  burden  of  his 


THE  EMPLOYMENT  OF  A  SHIP  BY  THE  OWNER.  321 

ship  to  another  is  said  to  carry  the  shipper's  goods  on  freight.  But 
the  most  common  meaning  of  the  word,  especially  in  law  proceed- 
ings, is  the  money  earned  by  a  ship  not  chartered,  for  the  transpor- 
tation of  the  goods ;  and  in  this  sense  we  shall  use  it. 

Nearly  the  whole  law  of  freight  grows  out  of  the  ancient  and  uni- 
versal principle  that  the  ship  and  the  cargo  have  reciprocal  duties 
or  obligations  towards  each  other,  and  are  reciprocally  pledged  to 
each  other  for  the  performance  of  these  duties.  In  other  words,  not 
only  is  the  owner  of  the  ship  bound  to  the  owner  of  the  cargo,  as 
soon  as  he  receives  it,  to  lade  it  properly  on  board,  take  care  of  it 
while  on  board,  carry  it  in  safety  (so  far  as  the  seaworthiness  of  the 
ship  is  concerned)  to  its  destined  port,  and  there  deliver  it,  all  in  a 
proper  way,  but  the  ship  itself  is  bound  to  the  discharge  of  these 
duties.  That  is  to  say,  if,  by  reason  of  a  failure  in  any  of  these  par- 
ticulars, the  shipper  of  the  goods  is  damnified,  he  may  look  to  the 
ship-owner  for  indemnity ;  but  he  is  not  obliged  to  do  so,  because 
he  may  proceed  by  proper  process  against  the  ship  itself.  This  lien, 
like  that  of  bottomry,  is  not  dependent  up<5n  possession,  but  will  be 
lost  by  delay,  especially  if  the  vessel  passes  into  the  hands  of  a  pur- 
chaser for  value  without  notice.  On  the  other  hand,  if  the  ship  dis- 
charges all  its  duties,  the  owner  may  look  to  the  shipper  for  the  pay- 
ment of  his  freight;  but  is  not  obliged  to  do  so,  because  he  may 
keep  his  hold  upon  the  goods,  and  refuse  to  deliver  them  until  the 
freight  is  paid. 

The  party  who  sends  the  goods  may  or  may  not  be  the  owner  of 
them.  And  he  may  send  them  either  to  one  who  is  the  owner,  for 
whom  the  sender  bought  them,  or  to  one  who  is  only  the  agent  of  the 
owner.  In  either  of  these  cases,  the  sender  is  called  the  consignor 
of  the  goods,  and  the  party  to  whom  they  are  sent  is  called  the  con- 
signee. The  sending  them  is  called  the  consigning  or  the  consign 
ment  of  them  ;  but  it  is  quite  common  to  hear  the  goods  themselves 
called  the  consignment. 

The  rights  and  obligations  of  the  ship-owner  and  the  shipper  are 
stated  generally  in  an  instrument  of  which  the  origin  is  lost  in  its  an- 
tiquity, and  which  is  now  in  universal  use  among  commercial  nations, 
with  little  substantial  variety  of  form.  It  is  called  the  Bill  of  Lading. 
It  should  contain  the  names  of  the  consignor,  of  the  consignee,  of 


322  THE  LAW  OF  SHIPPING. 

the  vessel,  of  the  master,  of  the  place  of  departure,  and  of  the  place 
of  destination  ;  also  the  price  of  the  freight,  with  primage  and  other 
charges,  if  any  there  be,  and  either  in  the  body  of  the  bill  or  in  the 
margin,  the  marks  and  numbers  of  the  things  shipped,  with  sufficient 
precision  to  designate  and  identify  them. 

It  should  be  signed  by  the  master  of  the  ship,  who,  by  the  strict 
maritime  law,  has  no  authority  to  sign  a  bill  of  lading  until  the 
goods  are  actually  on  board.  There  is  some  relaxation  of  this  rule 
in  practice  ;  but  it  should  be  avoided. 

Usually  one  copy  is  retained  by  the  master,  and  three  copies  are 
given  to  the  shipper ;  one  of  them  he  usually  retains,  another  he  sends 
to  the  consignee  with  the  goods,  and  the  other  he  sends  to  the  con- 
signee by  some  other  conveyance. 

The  delivery  of  the  goods  promised  in  the  bill  is  to  the  consignee, 
or  his  assigns ;  and  the  consignee  may  designate  his  assigns  by 
writing  on  the  back  of  the  bill,  "  Deliver  the  within-named  goods  to 
A  B,"  and  signing  this  order  ;  or  the  consignee  may  indorse  the  bill 
with  his  name  only  in  blank,  and  any  one  who  acquires  an  honest 
title  to  the  goods  and  to  the  bill  may  write  over  the  signature  an 
order  of  delivery  to  himself.  The  consignee  has  this  power,  if  such 
be  the  usage,  even  if  the  word  "  assigns  "  be  omitted.  Such  indorse- 
ment not  only  gives  the  indorsee  a  right  to  demand  the  goods,  but 
makes  him  the  owner  of  the  goods. 

As  the  bill  of  lading  is  evidence  against  the  ship-owner  as  to  the 
reception  of  the  goods,  and  their  quantity  and  quality,  it  is  common 
to  say"  contents  unknown,"  or  "  said  to  contain,"  &c.  But  without 
any  words  of  this  kind,  the  bill  of  lading  is  not  conclusive  upon  the 
ship-owner  in  favor  of  the  shipper,  because  he  may  show  that  its 
statements  were  erroneous  through  fraud  or  mistake.  But  the  ship- 
owner, or  master,  is  bound  much  more  strongly  by  the  words  of  the 
bill  of  lading,  in  favor  of  a  third  party,  who  has  bought  the  goods 
for  value  and  in  good  faith,  on  the  credit  of  the  bill  of  lading.  In  a 
case  which  occurred  in  New  York,  the  court  said,  that,  as  between 
the  shipper  of  the  goods  and  the  owner  of  the  vessel,  a  bill  of  lading 
may  be  explained  or  corrected  as  far  as  it  is  a  receipt ;  that  is,  as  to 
the  quantity  of  the  goods  shipped,  and  the  like  ;  but  as  between  the 
owner  of  the  vessel  and  an  assignee  of  the  bill,  for  a  valuable  cousid- 


323 

eration,  paid  on  the  strength  of  the  bill  of  lading,  it  may  not  be 
explained  or  corrected ;  because  the  master,  by  signing  the  till, 
authorizes  the  purchaser  to  believe  the  goods  are  what  the  bill  says 
they  are. 

The  law-merchant  gives  to  the  ship,  as  we  have  seen,  a  lien  on  the 
goods  for  the  freight.  The  master  cannot  demand  the  freight  with- 
out a  tender  of  the  goods  at  the  proper  time,  in  the  proper  way,  to 
the  proper  person,  and  in  a  proper  condition  ;  but  then  the  consignee 
is  not  entitled  to  the  goods  without  paying  freight.  The  law  gives 
this  lien,  whether  it  be  expressed  or  not.  But  it  may  be  expressly 
waived.  The  bill  of  lading,  or  other  evidence,  may  show  the  agree- 
ment of  the  parties  that  the  goods  should  be  delivered  first,  and  the 
freight  not  be  payable  until  a  certain  time  afterwards ;  and  such 
an  agreement  is  in  general  a  waiver  of  the  lien. 

Nevertheless,  if  it  seemed  that  the  ship-owner  did  not  intend  to 
give  up  his  security  on  the  goods,  a  court  of  admiralty  would  so 
construe  such  an  agreement  as  to  give  the  consignee  possession  of 
the  goods,  for  a  temporary  purpose,  as  to  ascertain  their  condition, 
or,  possibly,  that  he  might  offer  them  in  the  market,  and  by  an 
agreement  to  sell  raise  the  means  of  paying  the  freight ;  and  yet 
would  preserve  for  the  master  his  security  upon  the  gooas  for  a 
reasonable  time,  unless,  in  the  mean  time,  they  should  actually 
become,  by  sale,  the  property  of  a  bond  fide  purchaser. 

The  contract  of  affreightment  is  entire ;  therefore  no  freight  i& 
earned  unless  the  whole  is  earned,  by  carrying  the  goods  quite  to 
the  port  of  destination.  If  by  wreck,  or  other  cause,  the  trans- 
portation is  incomplete,  no  absolute  right  of  freight  grows  out  of  it. 
We  say  no  absolute  right,  because  a  conditional  right  of  freight  does 
exist.  To  understand  this,  we  must  remember,  that,  as  soon  as  the 
ship  receives  the  goods,  it,  on  the  one  hand,  comes  under  the 
obligation  of  carrying  them  to  their  destination,  and  on  the  other, 
at  the  same  time  or  on  breaking  ground  and  beginning  the  voyage, 
acquires  the  right  of  so  carrying  them.  Therefore,  if  a  wreck  or 
other  interruption  intervenes,  the  ship-owner  has  the  right  of  trans- 
snipping  them,  and  sending  them  forward  in  the  original  ship,  or 
another  ship,  to  the  place  of  their  original  destination.  When  they 
arrive  there,  he  may  claim  the  whole  freight  originally  agreed  on ; 


THE  LAW  OF  SHIPPING. 

but  if  forwarded  in  the  original  ship,  he  can  claim  no  more ;  for 
then  the  extra  cost  of  forwarding  the  goods  is  his  loss.  If  the 
master  or  owner  of  the  ship  forwards  them  in  another  ship  from 
necessity,  and  at  an  increased  cost,  the  shipper  must  pay  this  in- 
creased cost. 

The  ship-owner  not  only  may,  but  must,  send  forward  the  goods, 
at  his  own  cost,  if  this  can  be  done  by  means  reasonably  within  his 
reach.  He  is  not,  however,  answerable  for  any  delay  thus  occurring, 
or  for  any  damage  from  this  delay.  The  shipper  himself,  by  his 
agent,  may  always  reclaim  all  his  goods,  at  any  intermediate  port 
or  place,  on  tendering  all  his  freight ;  because  the  master's  right  of 
sending  them  forward  is  merely  to  earn  his  full  freight.  If,  there- 
fore, the  goods  are  damaged  and  need  care,  and  the  master  can 
send  them  forward  at  some  time  within  reasonable  limits,  and 
insists  upon  his  right  to  do  so,  the  shipper  can  obtain  possession  of 
his  goods  only  by  paying  full  freight.  If,  however,  the  master 
tenders  the  goods  there  to  the  shipper,  and  the  shipper  there  re- 
ceives them,  this  is  held  to  sever  or  divide  the  contract  bj 
agreement,  and  now  what  is  called  a  freight  pro  rata  itineris,  or  foi 
that  part  of  the  voyage  which  is  performed,  is  due.  This  is  quits 
a  common  transaction. 

Difficult  questions  sometimes  arise  as  to  what  is  a  reception  of  the, 
goods  by  their  owner.  The  rights  of  the  master  and  of  the  shipper 
are  apparently  opposed  to  each  other,  and  neither  must  be  pressed 
too  far.  The  master  must  not  pretend  to  hold  the  goods  for  forward- 
ing, to  the  detriment  of  the  goods  or  their  value,  when  he  cannot 
forward  them,  but  merely  uses  this  pretence  to  compel  a  payment 
of  full  freight.  And  the  shipper  must  not  refuse  to  receive  the 
goods,  when  the  master  can  do  no  more  with  them,  and  offers  their 
delivery  in  good  faith. 

If  freight  for  a  part  of  the  voyage  is  payable,  the  question  arises  by 
what  rule  of  proportion  shall  it  be  measured.  One  is  purely  geograph- 
ical, and  was  formerly  much  used ;  that  is,  the  whole  freight  would 
pay  for  so  many  miles,  and  the  freight  for  a  part  must  pay  for  no 
many  less.  Another  is  purely  commercial.  The  whole  freight  being 
a  certain  sum  for  the  whole  distance,  what  will  it  cost  to  bring  the 
goods  to  the  place  where  they  are  received,  and  how  much  to  take 


THE  EMPLOYMENT  OF  A  SHIP  BY  THE    OWNEB.  825 

them  thence  to  their  original  destination.  Let  the  original  freight 
be  divided  into  two  parts  proportional  to  these,  and  the  first  part  is 
the  freight  for  the  part  of  the  voyage  through  which  they  were 
carried,  or,  as  it  is  called,  the  freight  pro  rata,  and  is  to  be  paid  by 
the  shipper  who  receives  the  goods.  Neither  of  these,  nor  indeed 
any  other  fixed  and  precise  rule,  is  generally  adopted  in  this 
country.  But  both  courts  and  merchants  seek,  by  combining  the 
two,  to  ascertain  what  proportion  of  the  increase  of  value  expected 
from  the  intended  transportation  has  been  actually  conferred  upon 
the  goods  by  actual  partial  transportation,  and  this  is  to  be  taken  as 
the  freight  that  is  due  pro  rata  itineris. 

If  the  bill  of  lading  requires  delivery  to  the  consignee  or  his 
assigns,  "  he  or  they  paying  freight,"  —  which  is  usual,  —  and  the 
master  delivers  the  goods  without  receiving  freight,  which  the  con- 
signee fails  to  pay,  the  master  or  owner  cannot  in  the  absence  of 
express  contract  fall  back  on  the  consignor  and  make  him  liable, 
unless  he  can  show  that  the  consignor  actually  owned  the  goods,  or 
by  his  words  or  acts  made  himself  responsible  therefor ;  in  which 
case  the  bill  of  lading,  in  this  respect,  is  nothing  more  than  an  order 
by  a  principal  upon  an  agent  to  pay  money  due  from  the  principal. 

Under  the  usual  bill  of  lading,  the  goods  are  to  be  delivered  to 
the  consignee  or  his  assigns,  on  the  payment  of  freight.  If  goods 
are  accepted  under  this  bill  of  lading,  the  party  receiving  them, 
whether  the  consignee  or  his  assignee,  becomes  liable  for  the 
freight.  If  the  master  delivers  goods  to  any  one,  saying  that  he 
shall  look  to  him  for  the  freight,  he  may  demand  the  freight  of  him 
unless  that  person  had  the  absolute  right  to  the  goods  without  pay- 
ment of  freight ;  which  must  be  very  seldom  the  case.  If  the  con- 
signee is  not  liable  for  the  freight,  his  indorsement  of  the  bill  of 
lading  does  not  make  him  so.  And  if  the  consignee  is  liable,  and 
the  goods  are  received  by  any  one  only  as  agent  of  the  consignor, 
this  agent  does  not  thereby  become  liable. 

If  freight  be  paid  in  advance,  and  not  subsequently  earned,  it 
must  be  repaid,  unless  it  can  be  shown  that  the  owner  took  a  less 
sum  for  ready  cash  than  he  would  otherwise  have  had,  and  for  this  or 
some  other  equivalent  reason  the  money  paid  was  as  a  final  settle- 
ment, and  was  to  be  retained  by  the  owner  at  all  events. 


326  THE  LAW  OF  SHIPPING. 

If  a  consignee  pay  more  than  he  should,  he  may  recover  it  back, 
if  paid  through  ignorance  or  mistake  of  fact ;  but  not  if,  with  full 
knowledge  of  all  the  facts,  he  was  ignorant  or  mistaken  as  to  the 
law. 

If  one  sells  his  ship  after  a  voyage  is  commenced,  he  alone  can 
claim  the  freight  of  the  shipper  of  goods,  although  by  the  con- 
tract of  sale  the  seller  is  to  pay  it  over  to  the  purchaser.  A 
mortgagee  of  a  ship  who  has  not  taken  possession  has  not,  i: 
general,  any  right  to  the  freight,  unless  this  is  specially  agreed. 
Neither  has  a  lender  on  a  bottomry  bond. 

No  freight,  of  course,  can  be  earned  by  an  illegal  voyage ;  as  the 
law  will  not  enforce  any  illegal  contract,  or  sanction  any  illegal 
conduct. 

The  goods  are  to  be  delivered,  by  the  bill  of  lading,  in  good  con- 
dition, excepting  "  the  dangers  of  the  seas,"  and  such  other  risks  or 
perils  as  may  be  expressed.  If  the  goods  are  damaged  to  any 
extent  by  any  of  these  perils,  and  yet  can  be  and  are  delivered  in 
specie  (that  is,  if  the  goods  are  actually  delivered  although  hurt  or 
spoilt,  as  corn  or  hides  although  rotten,  flour  although  wet,  fish 
although  spoilt),  the  freight  is  payable. 

The  shipper  or  consignee  cannot  abandon  the  goods  for  the 
freight,  if  they  remain  in  specie,  although  they  may  be  worthless ; 
for  damage  caused  by  an  excepted  risk  is  his  loss,  and  not  the  loss 
of  the  owner.  If  they  are  lost  by  a  risk  which  the  ship-owner  does 
not  except  in  the  bill  of  lading,  he  is  answerable  for  that  loss,  and 
it  may  be  charged  in  settlement  of  freight. 

If  they  are  lost  in  substance,  though  not  in  form,  that  is,  although 
the  cases  or  vessels  are  preserved,  as  if  sugar  is  washed  out  of  boxes 
or  hogsheads,  or  wine  leaks  out  of  casks,  by  reason  of  injury  sus- 
tained from  a  peril  of  the  sea,  though  the  master  may  deliver  the 
hogsheads  or  boxes  or  casks,  this  is  not  a  delivery  of  the  sugar  or 
of  the  wine,  and  no  freight  is  due. 

If  the  goods  are  injured,  or  actually  perish  and  disappear,  from 
internal  defect  or  decay  or  change,  that  is,  from  causes  inherent  in 
the  goods  themselves,  with  no  fault  of  the  master,  freight  is  due. 
But  if  it  can  be  shown  that  the  loss  or  injury  might  have  been 
avoided  by  the  use  of  proper  precautionary  measures,  and  that  the 


CHAKTEK-PAKTIES.  327 

usual  and  customary  methods  for  this  purpose  have  been  neglected, 
the  master  or  ship-owners  may  be  held  liable  for  the  damage. 

If  they  are  lost  from  the  fault  of  the  ship-owner,  the  master,  or 
crew,  the  ship-owner  must  make  the  loss  good ;  but  in  this  case  may 
have,  by  way  of  offset  or  deduction,  his  freight,  because  the  shipper 
is  entitled  to  full  indemnification,  but  not  to  make  a  profit  out  of 
this  loss.  If  goods  are  delivered,  although  damaged  and  deteriorated 
from  faults  for  which  the  owner  is  responsible,  as  bad  stowage,  devia- 
tion, negligent  navigation,  or  the  like,  freight  is  due ;  the  amount  of 
the  damage  being  first  deducted. 

The  rules  in  respect  to  passage-money  are  quite  analogous  to 
those  which  regulate  the  payment  of  freight.  Usually,  however,  the 
passage -money  is  paid  in  advance.  But  it  is  not  earned  except  by 
carrying  the  passenger,  or  pro  rata,  by  carrying  him  only  a  part  of 
the  way  with  his  consent.  And  if  paid  in  advance,  and  not  earned 
by  the  fault  of  the  ship  or  owner,  it  can  be  recovered  back. 


SECTION  VIL 

CHARTER-PARTIES. 

THE  owner  may  let  his  ship  to  others ;  and  the  written  instru- 
ment by  which  this  is  done  is  called  by  an  ancient  name,  a  Charter- 
Party.  The  form  of  this  instrument  varies  considerably,  because  it 
must  express  the  bargain  between  the  parties,  and  this  of  course 
varies  with  circumstances  and  the  pleasure  of  the  parties.  An 
agreement  to  make  and  receive  a  charter,  though  not  itself  equiva- 
lent to  a  charter,  will,  if  the  purposes  of  the  proposed  charter  are 
carried  into  effect,  be  considered  as  evidence  that  such  a  charter 
was  made  and  completed. 

Generally,  only  the  burden  of  the  ship  is  let ;  the  owner  holding 
possession  of  her,  finding  and  paying  her  master  and  crew  and  sup- 
plies and  repairs,  and  navigating  her  as  is  agreed  upon.  Sometimes, 
however,  the  owner  lets  his  ship  as  he  might  let  a  house  ;  and  the 
hirer  takes  possession,  mans,  navigates,  supplies,  and  even  repairs 
her. 


328  -IHE  LAW  OF  SHIPPING. 

In  the  latter  case,  bills  of  lading  are  not  commonly  given  by  the 
ship-owner  to  the  hirer ;  but  if  the  hirer  takes  the  goods  of  other 
shippers,  bills  of  lading  are  given  by  him  to  them  ;  but  in  the  former, 
which  we  have  said  is  much  more  common,  bills  of  lading  are. 
usually  given  by  the  ship-owner  to  the  charterer  (or  hirer),  as  they 
are  in  the  case  of  a  general  ship.  They  are  then,  however,  little 
more  than  evidence  of  the  delivery  and  receipt  of  the  goods,  for  the 
charter-party  is  the  controlling  contract  as  to  all  the  terms  or  pro- 
visions which  it  expresses.  The  master  is  not  authorized  to  sign 
bills  promising  to  carry  and  deliver  the  goods  for  less  freight  than 
has  been  stipulated  for.  And  if  he  signs  such  bills,  and  goods  are 
shipped  by  the  charterer,  neither  the  charterer,  nor  any  person  ship- 
ping the  goods  with  a  knowledge  of  the  charter-party,  could  defend 
on  account  of  the  bills  of  lading,  against  the  owner's  claims  under 
the  charter-party. 

There  is  no  particular  form  required  for  a  charter-party.  It 
should  however,  designate  particularly  the  ship,  the  voyage,  the 
master,  and  the  parties ;  should  describe  the  ship  generally,  and 
particularly  as  to  her  tonnage  or  capacity ;  should  designate  espe- 
cially what  parts  of  the  ship  are  let,  and  what  parts,  if  any,  are 
reserved  to  the  owner,  or  to  the  master,  to  carry  goods,  or  for  the 
purpose  of  navigation ;  should  describe  the  voyage,  or  the  period  of 
time  for  which  the  ship  is  hired,  with  proper  particularity  ;  should 
set  forth  the  lay-days,  the  demurrage,  the  obligation  upon  either 
party,  to  man,  navigate,  supply,  and  repair  the  ship,  and  all  other 
particulars  of  the  bargain,  for  this  is  a  written  instrument  of  an  im- 
portant character,  and  cannot  be  varied  by  any  external  evidence. 
Finally,  it  should  state,  distinctly  and  precisely,  how  much  is  to  be 
paid  for  the  ship,  —  whether  by  ton,  and  if  so,  whether  by  ton  of 
measurement  or  ton  of  capacity  of  carriage,  or  in  one  gross  sum  for 
the  whole  burden,  —  and  when  the  money  is  payable,  and  how  ;  that 
is,  in  what  currency  or  at  what  exchange,  especially  if  it  be  payable 
abroad.  The  charter-party  usually  binds  the  ship  and  freight  to  the 
performance  of  the  duties  of  the  owner,  and  the  cargo  to  the  duties 
of  the  shipper.  But  the  law-merchant  would  create  this  mutuality 
of  obligation,  if  it  were  not  expressed. 

If  the  hirer  takes  the  whole  vessel,  he  may  put  the  goods  of  other 


CHAETER-PAETIES.  329 

shippers  on  board  (unless  prevented  by  express  stipulation)  ;  but 
whether  he  fills  the  whole  ship  or  not,  he  pays  for  the  whole  :  and 
what  he  pays  for  so  much  of  the  ship  as  is  empty  is  said  to  be  paid 
for  dead  freight ;  and  if  the  master  brought  back  the  cargo  because 
it  could  not  be  disposed  of,  the  owner  of  the  cargo  would  pay  freight 
for  bringing  it  back,  although  the  charter-party  said  nothing  about 
a  return  cargo.  The  freight  is  calculated  on  the  actual  capacity  of 
the  ship,  unless  she  is  agreed  to  be  of  a  specified  tonnage.  If  either 
party  is  deceived  or  defrauded  by  any  statement  in  the  charter- 
party,  he  has,  of  course,  his  remedy  against  the  other  party. 

If  a  charterer  takes  the  goods  of  other  shippers,  payment  by  one 
of  them  to  the  master  or  ship-owner  is  a  good  defence  against  the 
claim  of  the  charterer  against  him,  for  so  much  as  the  charterer 
was  bound  to  pay  the  owner,  but  no  more. 

The  voyage  may  be  a  double  one ;  a  voyage  out,  and  then  a 
voyage  home  ;  or  a  voyage  to  one  port,  and  theiice  to  another.  The 
question  sometimes  arises,  whether  any  freight  is  payable  if  the  ship 
arrives  in  safety  out,  and  delivers  her  cargo  there,  and  is  lost  on  her 
return  with  the  cargo  that  represents  the  cargo  out.  Of  course,  tbe 
parties  may  make  what  bargain  they  please,  and  the  law  respects  it ; 
but  in  the  absence  of  an  agreement  on  this  point,  the  courts  would 
generally  consider  each  voyage,  at  the  termination  of  which  goods 
are  delivered,  as  a  voyage  by  itself,  earning  its  own  freight. 

As  time  has  become  of  the  utmost  importance  in  commercial 
transactions,  both  parties  to  this  contract  should  be  punctual,  and 
cause  no  unnecessary  delay ;  and  for  such  delay  the  party  injured 
would  have  his  remedy  against  the  party  in  fault.  The  charter- 
party  usually  provides  for  so  many  "  lay-days,"  and  for  so  much 
"  demurrage."  Lay-days,  or  working-days,  are  so  many  days  which 
the  charterer  is  allowed,  without  paying  for  them,  or  paying  only  a 
small  price,  for  loading  or  for  unloading  the  vessel.  These  lay-days 
are  counted  from  the  arrival  of  the  ship  at  her  dock,  wharf,  or  other 
place  of  discharge,  and  not  from  her  arrival  at  her  port  of  destina- 
tion, unless  otherwise  agreed  on  by  the  parties ;  and  the  usage  of 
the  port  is  often  adverted  to,  to  determine  the  place  and  maniler 
of  loading.  In  the  absence  of  any  custom  or  bargain  to  the  con- 
trary, Sundays  are  computed  in  the  calculation  of  lay-days  at  the 


330  THE  LAW  OF  SHIPPING. 

i 

port  of  discharge  ;  but  if  the  contract  specifies  "  working  lay-days," 
Sundays  and  holidays  are  excluded.  If  more  time  than  the  agreed 
Lay-days  is  occupied,  it  must  be  paid  for  ;  and  "  demurrage  "  means 
what  is  thus  paid.  Usually,  the  charterer  agrees  to  pay  so  much 
demurrage  a  day.  If  he  agrees  only  to  pay  demurrage,  without 
specifying  the  sum,  or  if  so  many  working  days  are  agreed  on,  and 
nothing  more  is  said,  it  would,  generally,  be  considered  that  the 
number  of  lay-days  determined  what  was  a  reasonable  and  proper 
delay,  and  that  for  whatsoever  was  more  than  this  the  party  in  fault 
must  pay  a  reasonable  indemnity. 

If  time  be  occupied  in  the  repairs  of  the  ship,  which  become 
necessary  without  the  fault  of  the  ship-owner  or  master,  or  of  the 
ship  itself,  that  is,  if  they  do  not  arise  from  her  original  unsea- 
worthiness, the  charterer  pays  during  this  time.  The  charterer  or 
hirer  must  not  abandon  the  vessel  while  he  can  keep  her  afloat,  and 
suitably  provided  for  the  employment  and  destination  for  which  she 
was  hired ;  and  the  ship-owner  must  be  ready  to  pay  all  expenses 
and  damages  necessarily  incurred  for  the  purpose.  But  the  charterer 
will  not  be  bound  by  the  charter-party  to  wait  for  the  repair,  unless 
the  vessel  can  be  repaired  within  a  reasonable  time. 

Many  cases  have  arisen  where  the  ship  was  delayed  by  different 
causes,  and  the  question  occurred,  which  party  should  pay  for  the 
time  thus  lost.  I  should  say  that  no  delay  arising  from  the  ele- 
ments, as  from  ice, 'or  tide,  or  tempest,  or  from  any  act  of  govern- 
ment, or  from  any  real  disability  of  the  consignee  which  could  not 
be  imputed  to  his  own  act,  or  to  his  own  wrongful  neglect,  would 
give  rise  to  a  claim  on  the  charterer  for  demurrage. 

Demurrage  seems  essentially  due  only  for  the  fault  or  voluntary 
act  of  the  charterer ;  but  if  he  hires  at  so  much  on  time,  that  is,  by 
the  day,  week,  or  month,  then,  if  the  vessel  be  delayed  by  seizure, 
embargo,  or  capture,  and  the  impediment  is  removed,  and  the  ship 
completes  her  voyage,  the  charterer  pays  for  the  whole  time.  If 
she  be  condemned,  or  otherwise  lost,  this  terminates  the  voyage  and 
the  contract. 

The  contract  may  be  dissolved  by  the  parties,  by  mutual  consent, 
or  against  their  consent  by  any  circumstance  which  makes  the  ful- 
filment of  the  contract  illegal ;  as,  for  example,  by  a  declaration  of 


GENEEAL  AVEEAGE.  331 

war,  on  the  part  of  the  country  to  which  the  ship  belongs,  against 
that  to  which  she  was  to  go.  So,  either  an  embargo,  or  an  act  of 
non-intercourse,  or  a  blockade  of  the  port  to  which  the  ship  was 
going,  may  either  annul  or  suspend  the  contract  of  charter-party. 
And  we  should  say  they  would  be  held  to  suspend  only,  if  they  were 
temporary  in  their  terms,  and  did  not  require  a  delay  which  would 
be  destructive  of  the  purposes  of  the  voyage. 

In  reference  to  all  these  points,  it  is  to  be  understood,  that  if  the 
parties  know  or  expect  the  circumstance  when  they  make  their  bar- 
gain, and  provide  for  it,  any  bargain  they  choose  to  make  in  relation 
to  it  would  be  enforced,  unless  it  required  one  dr  other  of  the  par- 
ties to  do  something  prohibited  by  the  law  of  nations,  or  the  law  of 
the  country  in  which  the  parties  resided,  and  to  whose  tribunals 
they  must  resort. 

SECTION  vm. 

GENERAL    AVEEAGE. 

WHICHEVER  of  the  three  great  mercantile  interests  —  ship,  freight, 
or  cargo  —  is  voluntarily  lost  or  damaged  for  the  benefit  of  the 
others,  if  the  others  receive  benefit  therefrom,  they  must  contribute 
ratably  to  the  loss.  That  is  to  say,  such  a  loss  is  averaged  upon  all 
the  interests  and  property  which  derive  advantage  from  it.  The 
phrase  "  general  average  "  is  used,  because  a  loss  of  a  part  is  thus 
divided  among  all  the  other  parts,  and  is  sustained  by  all  in  equal 
proportion.  This  rule  is  ancient  and  universal.  It  would  be  held  to 
apply  to  all  our  inland  navigation,  whether  of  river  or  lake,  steam, 
or  canvas. 

There  are  three  essentials  in  general  average  without  the  concur- 
rence of  all  of  which  there  can  be  no  claim  for  a  loss.  First,  the 
sacrifice  must  be  voluntary  ;  second,  it  must  be  necessary  ;  third,  it 
must  be  successful.  Or,  in  other  words,  there  must  be  a  common 
danger,  a  voluntary  loss,  and  a  saving  of  the  imperilled  property  by 
that  loss. 

The  loss  must  not  only  be  voluntary,  but,  what  is  indeed  implied 
in  its  being  voluntary,  it  must  be  for  the  purpose  and  with  the  inten- 

23 


332  THE  LAW  OF  SHIPPING. 

tion  of  saving  something  else.  And  this  intention  must  be  carried 
into  effect ;  for  only  the  interest  or  property  which  is  actually  saved 
can  be  called  on  to  contribute  for  that  which  was  lost. 

The  reason  of  what  has  been  said  must  be  distinctly  understood, 
because  the  whole  law  of  general  average  rests  upon  it.  It  is  simply 
this :  if  any  man's  property  be  destroyed  for  the  benefit  of  his  neigh- 
bors, they  who  are  helped  by  his  loss  ought  to  make  up  his  loss. 
The  law  supposes  that  all  who  are  interested  in  the  ship  or  the 
cargo,  or  any  part  of  either,  agree  together  beforehand,  that,  if  a 
sacrifice  of  a  part  can  save  the  rest,  that  sacrifice  shall  be  made, 
without  stopping  to  ask  who  it  is  that  suffers  in  the  first  place  ;  and 
that  afterwards,  if  the  sacrifice  be  beneficial  to  any  for  whom  it  was 
made,  such  persons  shall  bear  their  share  of  it,  by  contributions  to 
him  whose  property  was  purposely  destroyed  for  their  good.  And 
their  contributions  shall  be  in  proportion  to  the  value  of  the  property 
saved  for  them  by  the  sacrifice. 

Any  loss  which  comes  within  this  reason  is  an  average  loss ;  as  ran- 
som paid  to  a  captor  or  pirate ;  not  so,  however,  if  he  take  what  he 
will,  and  leave  the  ship  and  the  rest ;  for  this  there  is  no  contribution. 
So,  cutting  away  bulwarks  or  the  deck,  to  get  at  goods  for  jettison, 
is  an  average  loss.  As  is  also  the  cutting  away  of  the  masts  and 
rigging,  or  throwing  overboard  a  boat  to  relieve  the  ship,  or  the  loss 
of  a  cable  and  anchor,  or  either,  by  cutting  the  cable  to  avoid  an 
impending  peril.  So  is  a  damage  which,  though  not  intended,  is 
the  direct  effect  and  consequence  of  an  act  which  was  intended  ;  as, 
where  a  mast  is  purposely  cut  away,  and  by  reason  of  it  water  gets 
into  the  hold,  and  damages  a  cargo  of  corn,  this  damage  is  as  much 
a  general  average  as  the  loss  of  the  mast. 

But  if  a  ship  makes  all  sail  in  a  violent  gale  to  escape  a  lee  shore, 
and  so  saves  ship  and  cargo,  but  carries  away  her  spars,  &c.  ;  or  if 
an  armed  ship  fights  a  pirate  or  enemy,  or  beats  him  off  at  great 
loss ;  the  first  is  a  common  sea  risk,  the  second  a  common  war  risk, 
and  neither  of  them  is  a  ground  for  average  contribution. 

It  is  not  considered  prudent  to  lade  goods  on  deck,  because  they 
are  not  only  more  liable  to  loss  there,  but  hamper  the  vessel,  and 
perhaps  make  her  top-heavy,  and  increase  the  common  danger 
for  the  whole  ship  and  cargo.  Therefore,  by  the  general  rule,  if 


GENERAL  AVEKAGE.  333 

goods  on  deck  are  jettisoned  (which  old  mercantile  worl  means  cast 
overboard),  they  are  not  to  be  contributed  for.  But  there  are  some 
voyages  on  which  there  is  a  known  and  established  usage  to  carry 
goods  of  a  certain  kind  on  deck.  This  justifies  the  carrying  them 
there,  and  then  the  jettison  of  them  would  entitle  the  owner  to  con- 
tribution. 

The  repairs  of  a  ship  are  for  the  benefit  of  the  ship  itself.  But  if  a 
ship  be  in  a  damaged  condition,  at  a  port  where  she  cannot  be  per- 
manently repaired,  and  receive  there  a  temporary  repair,  which  en- 
ables her  to  proceed  to  another  port  where  she  may  have  a  thorough 
repair,  and  thereby  the  voyage  is  saved,  the  cost  of  all  of  the  first  re- 
pair which  was  of  no  further  use  than  to  make  the  permanent  repair 
possible,  is  to  be  contributed  for  by  ship,  freight,  and  cargo,  because 
all  these  were  saved  by  it. 

If  a  ship  put  into  a  port  for  necessary  repair,  and  receive  it,  and 
the  voyage  is  by  reason  thereof  successfully  prosecuted,  the  wages 
and  provisions  of  the  crew,  from  the  time  of  putting  away  for  the 
port,  the  expense  of  loading  and  unloading,  and  every  other  neces- 
sary expense  arising  from  this  need  of  repair,  are  an  average. 

As  to  the  expenses,  wages,  &c.,  during  a  capture,  or  a  detention 
by  embargo,  the  claim  for  contribution  is  limited  to  those  expenses 
which  were  necessarily  and  successfully  incurred  in  saving  or  liber- 
ating the  property. 

The  loss  or  sacrifice  must  be  necessary  or  justified  by  a  reasonable 
probability  of  its  necessity  and  utility.  In  former  times  the  law 
guarded  with  much  care  against  wanton  and  unnecessary  loss  by 
requiring  that  the  master  should  formally  consult  his  officers  and 
crew,  and  obtain  their  consent  before  making  a  jettison.  But  this 
rule  has  passed  away  and  the  practice  is  almost  unknown ;  and  it 
has  been  held  that  where  a  consultation  is  had  this  merely  proves 
that  the  jettison  was  deliberately  made,  but  does  not  prove  the 
necessity  of  it. 

An  "  Adjustment  of  Average  "  means  an  account  stated,  which 
exhibits  accurately  all  the  losses  to  be  contributed  for,  and  all  the 
property  or  interests  bound  to  contribute,  and  all  the  persons  entitled 
to  receive  contribution,  and  the  amounts  they  should  each  receive, 
and  all  persons  bound  to  pay  contribution,  and  the  amounts  they 
bhould  each  pay. 


334  THE  LAW  OF  SHIPPING. 

It  is  the  master's  duty  to  have  an  average  adjustment  made  at  the 
first  port  of  delivery  at  which  he  arrives.  And  an  adjustment  made 
there,  especially  if  this  be  a  foreign  port,  is  generally  held  to  be 
conclusive  upon  all  parties.  For  the  purpose  of  this  rule,  our 
States  are  foreign  to  each  other  ;  as  they  are  indeed  for  most  pur- 
poses under  the  Law  of  Admiralty,  or  the  Law  of  Shipping.  And 
we  should  state  the  rule  to  be  that  an  adjustment,  when  properly 
made,  according  to  the  law  of  the  port  where  it  is  made,  is  binding 
everywhere.  But  a  foreign  adjustment  might  doubtless  be  set  aside 
or  corrected,  for  fraud  or  gross  error. 

The  master  has  the  right  of  refusing  delivery  of  the  goods,  until 
the  contribution  due  from  them  on  general  average  is  paid  to  him. 
That  is,  he  cannot  hold  the  whole  cargo,  if  it  belong  to  different  con- 
signees, until  the  whole  average  is  paid  ;  but  he  may  hold  all  that 
belongs  to  each  consignee,  until  all  that  is  due  from  that  consignee 
is  paid.  And  the  master  may  retain  public  property  belonging  to 
the  United  States  until  the  average  contribution  due  upon  it  has 
been  paid. 

As  the  purpose  of  average  and  contribution  is  to  divide  the  loss 
proportionably  over  all  the  property  saved  by  it,  the  whole  amount 
which  any  one  loses  is  not  made  up  to  him,  but  only  so  much  as  will 
make  his  loss  the  same  percentage  ,as  every  other  party  suffers. 
Thus,  if  there  be  four  shippers,  and  each  has  on  board  $5,000,  and 
the  ship  is  worth  $15,000,  and  the  freight  $5,000,  and  all  the  goods 
of  one  shipper  are  thrown  over,  and  every  thing  else  saved  ;  now  the 
the  whole  contributing  interest  is  $40,000,  and  the  loss,  which  is 
$5,000,  is  one-eighth  of  this  contributory  interest.  The  shipper 
whose  goods  are  jettisoned  therefore  loses  one-eighth  of  his  goods, 
and  the  remaining  seven-eighths  are  made  up  to  him,  by  each  owner 
of  property  saved  giving  up  one-eighth. 

There  are  usually  in  every  commercial  place  persons  whose  busi- 
ness it  is  to  make  up  Adjustments.  As  the  losses  usually  consist  of 
many  items,  some  of  which  are  general  average,  and  some  rest  on 
the  different  interests  on  which  they  fell,  and  as  the  contributory 
interests  must  all  be  enumerated,  and  the  value  of  each  ascertained 
according  to  the  general  principles  of  law,  and  then  the  average 
struck  on  all  these  items,  it  is  obvious  that  this  must  be  a  calcula- 


SALVAGE.  335 

tion  requiring  great  care  and  skill ;  and  as  the  adjustment  affects 
materially  persons  who  may  not  be  present,  nor  specially  repre- 
sented,—  for  all  these  reasons  only  those  who  are  known  to  be  com- 
petent to  the  work  should  be  employed  to  make  this  adjustment. 
With  us  this  work  is  generally  done  by  insurance  brokers. 


SECTION  IX. 
SALVAGE. 

IN  the  Law  of  Shipping  and  the  usage  of  merchants,  the  word 
"  salvage  "  has  two  quite  different  meanings.  If  a  ship  or  cargo 
meets  with  disaster,  and  the  larger  part  is  destroyed  or  lost,  and  a 
part  be  saved,  that  which  is  saved  is  called  the  "  salvage."  Thus  if 
a  ship  be  wrecked,  and  sold  where  she  lies  because  she  cannot  be 
got  off,  her  materials,  wood  and  metal,  her  spars,  sails,  cordage, 
boats,  and  every  thing  else  about  her  which  has  any  value,  constitute 
the  "  salvage."  And  all  of  this,  or  the  proceeds  of  it  if  it  be  sold  by 
the  master,  belong  to  the  owner  or  to  the  insurer,  accordingly  as 
circumstances  may  indicate  ;  and  this  question  will  be  considered  in 
the  chapter  on  the  Law  of  Insurance. 

Besides  this,  which  is  the  primary  meaning  of  the  word,  salvage 
has  quite  another  signification.  By  an  ancient  and  universal  law, 
maritime  property  which  has  sustained  maritime  disaster,  and  is  in 
danger  of  perishing,  may  be  saved  by  any  person  who  can  save  it, 
whether  they  are  or  are  not  requested  to  do  so  by  the  owner  or  his 
agent.  And  the  persons  so  saving  it  acquire  a  right  to  compensa- 
tion, and  a  lien  or  claim  on  the  property  saved  for  compensation. 
The  persons  saving  the  property  are  called  "  salvors ;  "  the  amount 
paid  to  them  is  paid  for  saving  the  property,  or,  as  it  was  called,  for 
the  "  salvage,"  meaning  at  first  by  this  word  the  act  of  saving  it ;  but 
the  habit  of  paying  so  much  for  "  salvage  "  led  to  understanding  by 
"  salvage  "  the  money  paid.  Then  it  was  said,  the  money  was  paid 
as  salvage.  This  is  now  the  more  common  use  of  the  word.  Thus 
a  party  bringing  a  saved  vessel  in  demands  "  salvage,"  and  estimates 
the  salvage  as  so  much  ;  and  the  owners  are  said  to  lose  so  much  by 


336  THE  LAW  OF  SHIPPING. 

salvage,  or  so  much  money  is  charged  to  salvage,  and  insurers  are 
said  to  be  liable  for  salvage,  meaning  in  all  these  and  similar  cases 
the  amount  paid  for  saving,  or  for  the  act  of  salvage. 

This  law  is  not  only  applicable  to  all  maritime  property,  but  is 
confined  to  that ;  and  is  nearly  unknown  in  reference  to  property 
saved  from  destruction  on  land. 

Because  this  principle  is  wholly  and  exclusively  maritime,  no  court 
but  that  of  Admiralty  acknowledges  and  enforces  it.  The  way  in 
which  it  is  enforced  is  this.  Salvors  have  a  lien  on  the  property 
saved  for  their  compensation  ;  that  is,  they  have  possession  of  it,  and 
have  a  right  to  keep  possession  of  it  until  their  claim  be  satisfied. 
For  this  purpose  they  bring  the  ship  or  goods  into  the  nearest  port, 
and  then  make  their  claim  of  the  owner  or  his  agent,  if  they  can  find 
him,  and  he  is  within  reach.  If  he  cannot  be  found,  or  if  he  re- 
fuses what  they  think  proper  to  demand,  they  employ  counsel  who 
are  acquainted  with  the  practice  in  Admiralty  courts,  who  present 
to  the  court  in  the  district  where  the  property  is  a  libel,  as  it  is 
called  in  Admiralty  law,  setting  forth  the  facts,  and  the  demand  for 
salvage.  Thereupon  the  court  takes  possession  of  the  property,  and 
orders  notice  to  the  owners,  if  possible.  The  owners  thereupon 
appear,  and  either  resist  all  the  demand  for  salvage,  on  the  ground 
that  no  services  were  performed  which  entitled  the  party  to  salvage, 
or,  admitting  the  service,  they  go  to  trial  to  determine  whether  any 
salvage,  and,  if  so,  how  much,  shall  be  paid.  On  this  question,  evi- 
dence and  argument  are  heard,  and  the  court  then  issues  such 
decree  as  the  case  seems  to  require. 

Although  services  were  rendered  to  the  ship  or  cargo,  or  both,  it 
does  not  follow  that  they  were  salvage  services  in  the  legal  sense  of 
the  word.  For  certainly  every  person  who  helps  another  at  sea  does 
not  thereby  acquire  a  right  to  take  possession  of  the  property  in 
reference  to  which  his  assistance  was  given,  and  carry  it  into  port. 
To  give  this  right,  the  property,  whether  ship  or  cargo,  must  have 
been,  in  the  proper  and  rational  sense  of  the  term,  saved ;  that  is, 
there  must  have  been  actual  disaster  and  impending  danger  of  de- 
struction ;  and  from  this  danger  the  property  must  have  been  rescued 
by  the  exertions  of  the  salvors,  either  alone,  or  working  together 
with  the  original  crew. 


SALVAGE.  337 

It  is  to  be  noticed,  however,  that  neither  the  master  nor  officers 
uor  sailors  of  the  ship  that  is  saved  can  be  salvors,  or  entitled  to 
salvage.  The  policy  of  the  law-merchant  forbids  the  holding  out 
such  a  reward  for  merely  doing  their  duty.  It  considers  that  sailors 
might  be  induced  to  let  the  vessel  get  into  danger,  if  they  could 
expect  a  special  reward  for  getting  her  out  of  it.  They  are  already 
bound  by  law  to  do  all  they  possibly  can  do  to  save  the  ship  and 
cargo  under  all  circumstances.  But  courts  of  Admiralty  have 
sometimes  allowed  gratuities  to  seamen  for  extraordinary  exertions 
and  very  meritorious  conduct.  A  passenger  may  be  a  salvor  of  the 
ship  he  sails  in,  because  he  has  no  especial  duty  in  regard  to  it. 

If  the  court  of  Admiralty  find  it  to  be  a  case  for  salvage,  there 
are  no  positive  and  certain  rifles  which  determine  how  much  shall 
be  given,  or  in  what  proportions,  to  the  different  salvors.  In  every 
case  the  court  are  governed  by  the  circumstances  of  that  case ;  and 
even  if  a  ship  or  cargo  be  entirely  abandoned  at  sea,  or,  in  maritime 
phrase,  derelict,  those  who  find  it  and  take  possession  of  it,  and 
bring  it  in,  take  according  to  their  merits,  and  not  one-half,  as  used 
to  be  the  rule.  More  than  one-half  is  very  seldom  given  ;  but  this 
has  been  done  in  a  few  extraordinary  cases. 

If  the  property  is  not  entirely  derelict  or  deserted,  and  all  hope  of 
recovering  it  by  the  original  crew  given  up,  then  less  than  half  is 
usually  given  by  way  of  salvage.  How  much  less  depends  on  the 
circumstances.  It  may  be  very  little,  or  nearly  half.  The  court 
inquire  how  much  time  was  lost  by  the  salvors,  how  much  labor  the 
saving  of  the  property  required,  and,  most  of  all,  how  much  expos- 
ure the  salvors  underwent,  or  how  much  danger  they  incurred. 
For  it  is  an  established  rule,  that  in  addition  to  a  fair  compensation 
for  time,  labor,  and  loss  of  insurance  (for  which  see  the  chapter  on 
Insurance),  the  court  will  give  a  further  sum  by  way  of  reward, 
and  for  the  purpose  of  encouraging  others  to  make  similar  exertions 
and  incur  similar  perils  to  save  valuable  property.  And,  in  this 
point  of  view,  all  necessary  exposure  and  danger  are  considered  as 
entitled  to  liberal  reward. 

If  the  court  have  not  restored  the  property  to  its  owners  on  their 
giving  bonds  with  sureties  to  pay  the  salvage  and  costs,  they  order 
the  property  sold ;  and  they  may  do  either  of  these  things  at  any 


338  THE  LAW  OF  SHIPPING. 

period  of  the  proceedings.  At  the  close,  they  decree  thu  whole 
amount  of  salvage,  and  also  direct  particularly  its  distribution. 

A  large  part,  usually  about  one-fourth,  of  the  whole  salvage,  is 
allowed  to  the  owners  of  the  saving  ship  or  ships ;  another  large 
part  to  her  master,  less  parts  to  the  officers,  in  proportion  to  their 
rank,  and  the  residue  is  divided  among  the  crew,  with  such  discrimi- 
nation between  one  and  another  as  greater  or  less  exertions  or  merit 
require. 

The  trial  is  had,  and  the  whole  decree  and  this  distribution  of  the 
salvage  made,  by  the  court  alone,  without  a  jury.  But  the  statute 
of  the  United  States,  which  gives  our  courts  of  Admiralty  (which 
are  exclusively  United-States  courts,  no  State  court  having  any 
Admiralty  power)  jurisdiction  in  Admiralty  over  our  inland  lakes 
and  rivers,  provides  that  disputed  facts  shall  be  tried  by  a  jury,  in 
most  cases,  at  the  request  of  either  party. 


SECTION  X. 

THE  NAVIGATION  OF  THE  SHIP. 

1.  Of  the  Powers  and  Duties  of  the  Master.  — The  master  has 
the  whole  care  and  the  supreme  command  of  his  vessel,  and  his 
duties  are  co-equal  with  his  authority.  He  must  see  to  every  thing 
that  respects  her  condition ;  including  her  repair,  supply,  loading, 
navigation,  and  unloading.  He  is  principally  the  agent  of  the 
owner  ;  but  is,  to  a  certain  extent,  the  agent  of  the  shipper,  and  of 
the  insurer,  and  of  all  who  are  interested  in  the  property  under  his 
charge. 

Much  of  his  authority  as  agent  of  the  owner  springs  from 
necessity.  He  may  even  sell  the  ship  in  a  case  of  extreme  necessity ; 
so  he  may  make  a  bottomry  bond  which  shall  pledge  her  for  a  debt ; 
so  he  may  charter  her  for  a  voyage  or  a  term  of  time  ;  so  he  may 
raise  money  for  repairs,  or  incur  a  debt  therefor,  and  make  his 
owners  liable.  All  these,  however,  he  can  do  only  from  necessity. 
If  the  owner  be  present,  in  person  or  by  his  agent,  or  is  within  easy 
access,  or  can  be  consulted,  by  telegraph  or  otherwise,  without  a 


THE  NAVIGATION  OF  THE  SHIP.  339 

loss  of  time  which  would  be  seriously  injurious,  the  master  has  no 
power  to  do  any  of  these  things  unless  specially  authorized. 

If  he  does  them  in  the  home  port,  the  owner  is  liable  only  where, 
by  some  act  or  words,  he  ratifies  or  adopts  the  act  of  his  master.  If 
in  a  foreign  port,  even  if  the  owner  were  there,  he  may  be  liable,  on 
his  master's  contracts  of  this  kind,  to  those  who  neither  knew  nor 
had  the  means  of  knowing  that  the  master's  power  was  superseded 
or  qualified  by  the  presence  of  the  owner.  The  master  being  by  the 
law-merchant  the  general  agent  of  the  owner  of  the  ship,  no  one 
dealing  with  him  can  be  prejudiced  by  any  private  or  secret  limita- 
tions to  his  authority  by  the  owner. 

Beyond  the  ordinary  extent  of  his  power,  which  is  limited  to  the 
care  and  navigation  of  the  ship,  he  can  go,  as  we  have  said,  only 
from  necessity.  But  this  necessity  must  be  greater  to  justify  some 
acts  than  for  others.  Thus,  he  can  sell  the  ship  only  in  a  case  of 
extreme  arid  urgent  necessity ;  that  is,  only  when  it  seems  in  all 
reason  impossible  to  save  her,  and  a  sale  is  the  only  way  of  preserv- 
ing for  the  owners  or  insurers  any  part  of  her  value.  We  say 
"  seems  ;  "  for  if  such  is  the  appearance  at  the  time,  when  all  exist- 
ing circumstances  are  carefully  considered  and  weighed,  the  sale  is 
not  void,  if  some  accident,  or  cause  which  could  not  be  anticipated, 
as  a  sudden  change  in  the  wind  or  sea,  enables  the  purchaser  to 
save  her  easily.  Several  such  cases  have  occurred. 

So,  to  justify  him  in  pledging  her  by  bottomry,  there  must  be  a 
stringent  and  sufficient  necessity  ;  but  it  may  be  far  less  than  is 
required  to  authorize  a  sale.  It  is  enough  if  the  money  is  really 
needed  for  the  safety  of  the  ship,  and  cannot  otherwise  be  raised,  or 
not  without  great  waste. 

So,  to  charter  the  ship,  there  must  be  a  sufficient  necessity,  unless 
the  master  has  express  power  to  do  this.  But  the  necessity  for  this 
act  may  be  only  a  mercantile  necessity ;  or,  in  other  words,  a  certain 
and  considerable  mercantile  expediency. 

So,  to  bind  the  owners  to  expense  for  repairs  or  supplies, 
there  must  also  be  a  necessity  for  them.  But  here  it  is  sufficient 
if  the  repairs  or  supplies  are  such  as  the  condition  of  the  vessel, 
and  the  safe  and  comfortable  prosecution  of  the  voyage,  render 
proper. 


340  THE  LAW  OF  SHIPPING. 

/ 

So  the  master  —  unlike  other  agents,  who  have  generally  no 
power  of  delegation  —  may  substitute  another  for  himself,  to  dis- 
charge all  his  duties,  and  possess  all  his  authority,  if  he  is  unable 
to  discharge  his  own  duties,  because,  in  that  case,  the  safety  of  the 
ship  and  property  calls  for  this  substitution. 

Generally,  the  master  has  nothing  to  do  with  the  cargo  between 
the  lading  and  the  delivery.  But,  if  the  necessity  arises,  he  may 
sell  the  cargo,  or  a  part  of  it,  at  an  intermediate  port,  if  he  cannot 
carry  it  on  or  transmit  it,  and  it  must  perish  before  he  can  receive 
specific  orders.  So,  he  may  sell  it,  or  a  part,  or  pledge  (or  hypothe- 
cate) it,  by  means  of  a  respondentia  bond,  in  order  to  raise  money 
for  the  common  benefit.  A  bond  of  respondentia  is  much  the  same 
thing  as  to  the  cargo  that  a  bottomry  bond  is  as  to  the  ship. 
Money  is  borrowed  by  it,  at  maritime  interest,  on  maritime  risk,  the 
debt  to  be  discharged  by  a  loss  of  the  goods.  But  it  can  be  made 
by  the  master  only  on  even  a  stronger  necessity  than  that  required 
for  bottomry ;  only  when  he  can  raise  no  money  by  bills  on  the 
owner,  nor  by  a  bottomry  of  the  ship,  nor  by  any  other  use  of  the 
property  or  credit  of  the  owner.  Indeed,  it  seems,  that,  when  goods 
are  sold  by  the  master  to  repair  the  vessel,  it  is  to  be  considered  as 
in  the  nature  of  a  forced  loan,  for  which  the  owner  of  the  vessel  is 
liable  to  the  shipper,  whether  the  vessel  arrive  or  not.  • 

The  general  remark  may  be  made,  that  a  master  has  no  ordinary 
power,  and  can  hardly  derive  any  extraordinary  power  even  from 
any  necessity,  except  for  those  things  which  are  fairly  within  the 
scope  of  his  business  as  master,  and  during  his  employment  as 
master.  Beyond  this,  he  has  no  agency  or  authority  that  is  not 
expressly  given  him. 

The  owner  is  liable  also  for  the  wrong-doings  of  the  master  ;  but 
with  the  limitation  which  belongs  generally  to  the  liability  of  a 
principal  for  the  torts  of  his  agent,  or  of  a  master  for  the  torts  of 
his  servant.  That  is,  he  is  liable  for  any  injury  done  by  the  master 
while  acting  as  the  master  of  his  ship,  but  not  for  the  wrongful 
acts  which  he  may  do  personally  when  he  is  not  acting  in  his 
capacity  of  master,  although  he  holds  the  office  at  the  time.  Thus 
if,  through  want  of  skill  or  care  while  navigating  the  ship,  he  runs 
another  down,  the  owner  is  liable  for  the  collision.  But  the  owner 


THE  NAVIGATION  OF  THE  SHIP.  341 

is  not  liable  if  the  master  embezzles  goods  which  he  takes  on 
board  to  fill  his  own  privilege,  to  have  himself  all  the  freight  and 
profit. 

2,  Of  Collision.  —  The  general  rules  in  this  country  in  respect 
to  collision  are  that  the  party  in  fault  suffers  his  own  loss  and 
compensates  the  other  part  for  the  loss  he  may  sustain.  If  neither 
is  in  fault,  the  loss  rests  where  it  falls.  If  both  parties  are  in  fault, 
the  loss  rests  where  it  falls  by  the  rules  of  the  common  law,  but  is 
equally  divided  in  Admiralty.  There  are  certain  rules  in  regard  to 
sailing,  founded  on  the  principle  that  the  ship  which  can  change  its 
eourse  to  avoid  collision  with  least  inconvenience  must  do  so  ;  and 
therefore  that  the  ship  that  has  a  fair  or  leading  wind  shall  give  way 
to  one  on  a  wind,  or  go  under  her  stern ;  and  if  vessels  are 
approaching  each  other,  both  having  the  wind  on  the  beam,  or  so 
far  free  that  either  may  change  its  course  in  either  direction,  the 
vessel  on  the  larboard  tack  must  give  way,  and  each  pass  to  the 
right.  The  same  rule  governs  vessels  sailing  on  the  wind,  and 
approaching  each  other,  when  it  is  doubtful  which  is  to  the  wind- 
ward. But  if  the  vessel  on  the  larboard  tack  is  so  far  to  windward, 
that,  if  both  persist  on  their  course,  the  other  will  strike  her  on  the 
lee  side,  abaft  the  beam,  or  near  the  stern,  in  that  case  the  vessel 
on  the  starboard  tack  should  give  way,  as  she  can  do  so  with 
greater  facility,  and  less  loss  of  time  and  distance,  than  the  other. 
Again,  when  vessels  are  crossing  each  other  in  opposite  directions, 
and  there  is  the  least  doubt  of  their  going  clear,  the  vessel  on  the 
starboard  tack  should  persevere  on  her  course,  while  that  on  the 
larboard  tack  should  bear  up,  or  keep  away  before  the  wind. 

It  is  also  held  that  steam-vessels  are  regarded  in  the  light  of 
vessels  navigating  with  a  fair  wind,  and  are  always  under  obliga- 
tions to  do  whatever  a  sailing-vessel  going  free  or  with  a  fair  wind 
would  be  required  to  do  under  similar  •  circumstances.  Their 
obligation  extends  still  further,  because  they  possess  a  power  to 
avoid  the  collision  not  belonging  to  sailing-vessels,  even  if  they  have 
a  free  wind,  the  master  having  the  steamer  under  his  command, 
both  by  changing  the  helm  and  by  stopping  or  reversing  the  engines. 

As   a  general  rule,   therefore,  when   meeting  a  sailing-vessel, 


342  THE  LAW  OF  SHIPPING. 

whether  close-hauled  or  with  the  wind  free,  the  latter  has  a  right  to 
keep  her  course,  and  it  is  the  duty  of  the  steamer  to  adopt  such 
precautions  as  will  avoid  her. 

Vessels  in  tide-ways,  or  otherwise  in  danger  of  collision,  should 
hang  out  lights,  but  there  is  no  positive  rule  or  usage  requiring  the 
master,  always,  in  the  night-time,  to  keep  a  light  exhibited  on  his 
vessel.  In  each  case,  whether  common  prudence  required  of  the 
plaintiffs  to  have  a  light,  and  whether  the  omission  of  it  amounted 
to  negligence,  must  depend  upon  the  darkness  of  the  night,  the 
number  and  situation  of  the  vessels  in  the  harbor,  and  all  other 
circumstances  connected  with  the  transaction.  This  is  a  question 
of  fact,  within  the  province  of  the  jury.  A  United-States  statute 
requires  lights  in  the  case  of  certain  steamboats,  and  directs  where 
they  shall  be  placed  on  the  vessel. 

All  these  rules  should  be  observed,  and  neglect  of  them  would  go 
far  to  imply  a  want  of  care  or  skill.  But  none  of  these  rules  are  in 
this  country  so  positive  as  to  bind  masters  or  ship-owners  in  all  cases 
with  the  force  of  law. 

For  any  misdeed  of  the  master,  for  which  the  owner  is  liable,  this 
liability  is  limited  in  our  own  country,  as  well  as  in  many  others,  to 
the  value  of  the  ship  and  freight. 


SECTION  XL 
THE    SEAMEN. 

THE  law  makes  no  important  distinction  between  the  officers,  or 
mates,  as  they  are  usually  called,  and  the  common  sailors.  Our 
statutes  contain  many  provisions  in  behalf  of  the  seamen,  and  in 
regulation  of  their  rights  and  duties,  although  the  contract  between 
them  and  the  ship-owner  is  in  general  one  of  hiring  and  service. 
They  relate  principally  to  the  following  points:  1st,  the  shipping 
articles;  2d,  wages;  3d,  provisions  and  subsistence;  4th,  the  sea- 
worthiness of  the  ship ;  5th,  the  care  of  seamen  in  sickness ;  6th, 
the  bringing  them  home  from  abroad ;  7th,  regulation  of  punish- 
ment. 


SEAMEN.  343 

First.  Every  master  of  a  vessel  bound  from,  a  port  in.  the  United 
States  to  any  foreign  port,  or  of  any  ship  or  vessel  of  the  burden  of 
fifty  tons  or  upwards,  bound  from  a  port  in  one  State  to  a  port  in 
any  other  State,  is  required  to  have  shipping  articles,  which  articles 
every  seaman  on  board  must  sign,  under  a  penalty  of  twenty  dollars 
for  every  person  who  does  not  sign,  and  they  must  describe  accu- 
rately the  voyage,  and  the  terms  on  which  each  seaman  ships.  Courts 
will  protect  seamen  against  uncertain  or  catching  language,  and 
against  unusual  and  oppressive  stipulations.  And  the  shipping  arti- 
cles ought  to  declare  explicitly  the  ports  of  the  beginning  and  of  the 
termination  of  the  voyage.  If  a  number  of  ports  are  mentioned,  they 
are  to  be  visited  only  in  their  geographical  and  commercial  order,  and 
not  revisited  unless  the  articles  give  the  master  a  discretion.  Ad- 
miralty courts  enforce  the  stipulations  if  they  are  fair  and  legal,  or 
disregard  them  if  they  are  otherwise,  and  exercise  a  liberal  equity 
on  this  subject ;  but  courts  of  common  law  are  more  strictly  bound 
by  the  letter  of  the  contract.  The  articles  are  generally  conclusive 
as  to  wages  ;  but  accidental  errors  or  omissions  may  be  supplied  or 
corrected  by  either  party,  by  parol. 

Second.  Wages  are  regulated  as  above  stated,  and  also  by  limit- 
Ing  the  right  to  demand  payment  in  a  foreign  port  to  one-third  the 
amount  then  due,  unless  it  be  otherwise  stipulated.  Seamen  have 
a  lien  on  the  ship  and  on  the  freight  for  their  wages,  which  is  en- 
forceable in  Admiralty.  By  the  ancient  rule,  that  freight  is  the 
mother  of  wages,  any  accident  or  misfortune  which  makes  it  impos- 
sible for  the  ship  to  earn  its  freight  destroys  the  claim  of  the  sailors 
for  wages.  The  reason  is,  to  hold  out  to  the  seamen  the  strongest 
possible  inducement  to  enable  the  ship  to  carry  the  .goods  and  earn 
the  freight. 

Third.  Provisions  of  due  quality  and  quantity  must  be  furnished 
by  the  owner,  and  double  wages  are  given  to  the  seamen  when  on 
short  allowance,  unless  the  necessity  be  caused  by  some  peril  of  the 
sea,  or  other  accident  of  the  voyage.  The  master  may  at  any  time 
put  them  on  a  fair  and  proper  allowance  to  prevent  waste. 

Fourth.  The  owner  is  bound  to  provide  a  seaworthy  vessel,  and 
our  statutes  provide  the  means  of  lawfully  ascertaining  her  condition 
at  home  or  abroad,  by  a  regular  survey,  on  complaint  of  the  mate 


344  THE  LAW  OF  SHIPPING. 

and  a  majority  of  the  seamen.  But  this  very  seldom  occurs  h 
practice.  If  seamen,  after  being  shipped,  refuse  to  proceed  upon 
their  voyage,  and  are  complained  of  and  arrested,  the  court  will  in- 
quire into  the  condition  of  the  vessel,  and  if  the  complaint  of  the 
seamen  is  justified,  in  a  greater  or  less  degree,  will  discharge  them, 
or  mitigate  or  reduce  their  punishment. 

Fifth.  As  to  sickness,  our  statutes  require  that  every  ship  of  the 
burden  of  one  hundred  and  fifty  tons  or  more,  navigated  by  ten  per- 
sons or  more  in  the  whole,  and  bound  on  a  voyage  without  the 
limits  of  the  United  States,  and  also  that  vessels  of  seventy-five  tons 
or  more,  navigated  by  six  or  more  persons  in  the  whole,  bound  from 
the  United  States  to  any  port  in  the  West  Indies,  shall  have  a  proper 
medicine-chest  on  board.  Moreover,  twenty  cents  a  month  are  de- 
ducted from  the  wages  of  every  seaman  to  make  up  a  fund  for  the 
maintenance  of  marine  hospitals,  to  which  every  sick  seaman  may 
repair  without  charge.  In  addition  to  this  the  general  law-merchant 
requires  every  ship-owner  or  master  to  provide  suitable  medicine, 
medical  treatment,  and  care,  for  every  seaman  who  becomes  sick, 
wounded,  or  maimed,  in  the  service  of  the  ship,  at  home  or  abroad, 
at  sea  or  on  shore ;  unless  this  is  caused  by  the  misconduct  of  the 
seaman  himself.  The  right  to  these  things  extends  to  the  officers 
of  the  ship. 

Sixth.  The  right  of  the  seaman  to  be  brought  back  to  his  own 
home  is  very  jealously  guarded  by  our  laws.  The  master  should 
always  present  his  shipping  articles  to  the  consul  or  commercial 
agent  of  the  United  States,  at  every  foreign  port  which  he  visits,  but 
is  not  required  by  law  to  do  this  unless  the  consul  desires  it.  He 
must,  however,  .present  them  to  the  first  boarding  officer  on  his  ar- 
rival at  a  home  port.  And  if,  upon  an  arrival  at  a  home  port  from 
a  foreign  voyage,  it  appears  that  any  of  the  seamen  are  missing,  the 
master  must  account  for  their  absence.  If  he  discharge  a  seaman 
abroad  with  his  consent,  he  must  pay  to  the  American  consul  of  the 
port,  or  the  commercial  agent,  over  and  above  the  wages  then  due, 
three  months'  wages,  of  which  the  consul  gives  two  to  the  seaman, 
and  remits  one  to  the  treasury  of  the  United  States  to  form  a  fund 
for  bringing  home  seamen  from  abroad.  This  obligation  does  not 
apply  Where  the  seaman  is  discharged  because  the  voyage  is  neces- 


SEAMEN.  345 

sarily  broken  up  by  a  wreck,  or  similar  misfortune.  But  proper 
measures  must  be  taken  to  repair  the  ship  if  possible,  or  to  obtain 
her  restoration,  if  captured.  And  the  seamen  may  hold  on  for  a 
reasonable  time  for  this  purpose,  and  if  discharged  before,  may  claim 
the  extra  wages. 

Our  consuls  and  commercial  agents  may  authorize  the  discharge 
of  a  seaman  abroad  for  his  gross  misconduct,  and  he  then  has  no 
claim  for  the  extra  wages.  On  the  other  hand,  if  he  be  treated 
cruelly,  or  if  the  ship  be  unseaworthy  by  her  own  fault,  or  if  the 
master  violate  the  shipping  articles,  the  consul  or  commercial  agent 
may  direct  the  discharge  of  the  seaman  ;  and  he  then  has  a  right  to 
these  extra  wages,  and  this  even  if  the  seaman  had  deserted  the  ship 
by  reason  of  such  cruelty.  They  may  also  send  our  seamen  home 
in  American  ships,  which  are  bound  to  bring  them  for  a  compensa- 
tion not  to  exceed  ten  dollars  each,  and  the  seamen  so  sent  must 
work  and  obey  as  if  originally  shipped.  It  is  of  great  importance 
that  the  powers  and  duties  of  our  consuls  abroad  should  be  distinct- 
ly defined  and  well  known.  And  Congress  has  recently  enacted  an 
excellent  statute  on  this  subject. 

If  a  master  discharges  a  seaman  against  his  consent,  and  without 
good  cause,  in  a  foreign  port,  he  is  liable  to  a  fine  of  five  hundred 
dollars,  or  six  months'  imprisonment.  And  a  seaman  may  recover 
full  indemnity  or  compensation  for  his  loss  of  time,  or  expenses  in- 
curred by  reason  of  such  discharge. 

Seventh.  As  to  the  regulation  of  punishment,  flogging  has  been 
alx)lished  and  prohibited  by  law.  Flogging  means  the  use  of  the 
cat,  or  a  similar  instrument,  but  not  necessarily  blows  of  the  hand, 
or  a  stick  or  a  rope.  Desertion,  in  maritime  law,  is  distinguished 
from  absence  without  leave,  by  the  intention  not  to  return.  This  in- 
tention is  inferred  from  a  refusal  to  return.  If  he  returns  and  is 
received,  this  is  a  condonation  (or  forgiving)  of  the  offence,  and  is 
a  waiver  of  the  forfeiture.  If  he  desert  before  the  voyage  begins, 
he  forfeits  the  advanced  wages,  and  as  much  more  ;  but  he  may  be 
apprehended  by  a  warrant  of  a  justice,  and  forcibly  compelled  to  go 
on  board,  and  this  is  a  waiver  of  the  forfeiture.  By  desertion  oh 
the  voyage,  he  forfeits  all  his  wages  and  all  his  property  on  board 
the  ship,  and  is  liable  to  the  owner  for  all  damages  sustained  in  hir- 
ing another  seaman  in  his  place. 


346  THE  LAW  OF  SHIPPING. 

Desertion,  under  the  statute  of  the  United  States  on  this  subject, 
is  a  continued  absence  from  the  ship  for  more  than  forty-eight  hours, 
without  leave ;  and  there  must  be  an  entry  in  the  log-book  of  the 
time  and  circumstance.  But  any  desertion  or  absence  without  leave, 
at  a  time  when  the  owner  has  a  right  to  the  seaman's  service,  is  an 
offence  by  the  law-merchant,  giving  the  owner  a  right  to  full  indem- 
nity. 

SECTION  XIL 

PrLOTS. 


AN  act  of  Congress  authorizes  the  several  States  to  make  their 
own  pilotage  laws ;  and  questions  under  these  laws  are  cognizable 
in  the  State  courts.  No  one  can  act  as  pilot,  and  claim  the  com- 
pensation allowed  by  law  for  the  service,  unless  duly  appointed. 
And  he  should  always  have  with  him  his  commission,  which  should 
always  designate  the  largest  vessel  he  may  pilot,  or  that  which 
draws  the  most  water.  If  a  pilot  offers  himself  to  a  ship  that  has 
no  pilot,  and  that  is  entering  or  leaving  a  harbor  and  has  not  already 
reached  certain  geographical  limits,  the  ship  must  pay  him  pilotage 
fees,  whether  his  services  are  accepted  or  not.  As  soon  as  the  pilot 
stands  on  deck,  he  has  control  of  the  ship.  But  it  remains  the 
master's  duty  and  power,  in  case  of  obvious  and  certain  disability, 
or  dangerous  ignorance  or  error,  to  disobey  the  pilot,  and  dispos- 
sess him  of  his  authority ;  but  the  master  should  interfere  with  the 
pilot  only  in  extreme  cases.  If  a  ship  neglect  to  take  a  pilot  when  it 
should  and  can  take  one,  the  owners  will  be  answerable  in  damages 
to  shippers  or  others  for  any  loss  which  may  be  caused  by  such  neg- 
•  lect  or  refusal.  Pilots  are  themselves  answerable  for  any  damage 
resulting  from  their  own  negligence  or  default,  and  have  been  held 
strictly  to  this  liability. 


SECTION 

MATERIAL    MEN. 


MARITIME  law  calls  by  this  name  all  persons  employed  to  repair  a 
ship  or  furnish  her  supplies.     Such  persons,  and  indeed  all  who 


COMMEECIAL  FOEMS.  347 

work  upon  her,  have  a  lien  on  the  ship  for  their  charges.  There  is, 
however,  this  important  distinction.  Material  men,  by  Admiralty 
law,  have  a  lien  only  on  foreign  ships,  and  not  on  domestic  ships. 
But  many  of  our  States  have  by  statute  given  this  lien  to  material 
men  on  all  ships,  without  distinction ;  as  in  New  York,  Pennsyl- 
vania, Massachusetts,  Maine,  Illinois,  Indiana,  Missouri,  Alabama, 
and  Michigan ;  and  in  Louisiana  the  same  lien  exists  under  the 
general  Spanish  law. 

It  has  been  held  that  such  a  lien  extends  beyond  mere  repairs,  — 
certainly  to  alterations,  and  perhaps  to  reconstruction,  —  but  not  to 
original  building,  unless  the  statute  includes  ship-building.  A 
laborer,  employed  in  general  work  by  a  shipwright  or  mechanic,  and 
by  him  sometimes  employed  on  the  vessel,  and  sometimes  elsewhere, 
gets  no  lien  on  the  vessel  for  that  part  of  the  labor  performed  about 
it.  These  statute  liens  take  precedence  of  the  claims  of  all  other 
creditors. 

It  has  been  said  in  previous  pages,  that  our  States  are  foreign  to 
each  other  for  most  purposes  under  the  law  of  Admiralty  ;  and  they 
are  so  as  to  the  lien  of  material  men.  Therefore,  in  States  in  which 
there  is  no  statute  on  the  subject,  material  men  would  have  a  lien 
for  supplies  or  repairs  for  a  vessel  belonging  to  any  other  of  our 
States,  but  not  for  a  vessel  belonging  to  the  State  in  which  the  sup- 
plies were  furnished  or  the  repairs  were  made.  See  the  chapter  on 
Liens. 


(91.) 
Bill  of  Sale  of  Vessel. 

To  all  to  whom  these  Presents  shall  come,  Greeting :  Know  ye, 
that  (name  of  seller)  of  the  (town  or  city  and  county  where  he  resides) 

in  the  State  of  owner         (if  the  seller  owns  only  a  part  of 

the  vessel,  here  say  what  parf)  of  the  (ship,  or  what  else  it  is)  or  vessel  called  the 
of  the  burden  of  tons,  or  thereabouts,  for 

and  in  consideration  of  the  sum  of  dollars 

lawful  money  of  the  United  States  of  America,  to  me  (or  us,  if  more  sellers 

than  one)  in  hand  paid,  before  the  ensealirg  and  delivery  of  these  presents,  by 
(name  of  the  buyer)  the  receipt  whereof  I  (or  we)  do  hereby  acknowledge,  have 

24 


348 


THE  LAW  OF  SHIPPING. 


granted,  bargained  and  sold,  and  by  these  presents  do  grant,  bargain  and  sell,  unto 
the  said  (name  of  the  buyer) 

and  his 

executors,  administrators,  and  assigns,  the  whole  (or  name  the 

part)  of  said  or  vessel,  together  with  the  masts,  bowsprit,  sails, 

boats,  anchors,  cables,  tackle,  apparel  and  furniture,  and  all  other  necessaries  there- 
unto appertaining  and  belonging.    The  certificate  of  the  enrolment  of  which  said 
or  vessel  is  as  follows : 


No. 


ENROLMENT. 


In  conformity  to  an  act  of  Congress  of  the  United  States  of  America,  entitled 
"An  Act  for  enrolling  and  licensing  Ships  and  Vessels,"  &c.,  passed  the  18th  of 
February,  1793 ;  and  "  An  Act  to  regulate  the  Foreign  and  Coasting  Trade  on  the 
Northern,  North-eastern  and  North-weetern  Frontiers  of  the  United  States,  and  for 
other  purposes,"  passed  the  17th  of  June,  1864,  and  all  the  acts  of  the  7th  July, 
1838 ;  29th  July,  1850,  and  6th  May,  1864  (name  of  the  owner)  having  taken  or 
subscribed  the  oath  required  by  the  said  acts,  and  having  sworn  that  he 
citizen  of  the  United  States,  and  sole  owner  of  the 


or  vessel,  called  the 

at  present  Master ;  and  as      he 

States,  and  that  the  said 

in  the  year  18        ,  as  appears  by 

certified  that  the  said 

and  that  her  length  is 


of  whereof 

ha  citizen 

or  vessel  was  built  at 

And 

vessel  has  deck 

feet,  her  breadth 


her  depth 
she  measures 


feet,  her  height 
tons  and 


is 
of  the  United 

having 

mast    , 

feet, 

feet,  and  that 


hundredths. 


Tonnage. 


1 
100 


Capacity  under  tonnage  deck 

Capacity  between  decks  above  tonnage  deck 
Capacity  of  enclosure  on  upper  deck  .  .  . 
Total  tonnage 


that  she  has  a  figure-head  (describing  it). 

And  the  said  having  agreed  to  the  description  anc 

admeasurement  above  specified,  and  sufficient  security  having  been  given,  in  cor 
fortuity  with  the  terms  of  the  said  acts,  the  said  has  been  dab 

enrolled  at  the  port  of 

Given  under  my  hand  and  seal  of  office,  at  the  port  of  tl 

day  of  in  the  year  one  thousand  eigl 

hundred  and  sixty 

Collector. 


COMMEKCIAL  FOEMS.  349 

To  Have  and  to  Hold  the  said  or  vessei,  and  appur- 

tenances thereunto  belonging,  to  him  (or  them),  the  said  (name  of  the  buyer) 

and  his  (or  their)  executors,  administrators  and  assigns,  to  the  sole  and  only  proper 
use,  benefit  and  behoof  of  him  (or  them),  the  said  (name  of  the  buyer)  and  his 

(or  their)  executors,  administrators  and  assigns  forever ;  and  I  (or  we)  the  said 
(name  of  the  seller)  ha  and  by  these  presents  do  promise,  covenant  and  agree,  for 
myself  (or  ourselves)  and  my  (or  our)  heirs,  executors,  administrators  and  assigns, 
to  and  with  the  said  (name  of  buyer)  and  with  his  (or  their)  heirs,  executors, 
administrators  and  assigns,  to  warrant  and  defend  the  said  or 

vessel,  and  all  the  other  before  mentioned  appurtenances  against  the  lawful  claims 
and  demands  of  all  and  every  person  or  persons  whomsoever,  and  that  I  (or  we) 
ha  good  right  and  authority  to  sell  and  dispose  of  the  same  in  manner  aforesaid. 

In  Testimony  Whereof,  The  said  has  hereunto 

set  his  hand  and  seal  this  day  of 

one  thousand  eight  hundred  and 

(Signature.')     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 


STATE  OP 

88. 

COUNTY. 


•? 

JNTY.    ) 


I,  a  Notary  Public  in  and  for  the  in  the 

County  of  and  State  of  ,  do  hereby  certify, 

that  personally  known  to  me  as  the  same  person      whose 

name        subscribed  to  the  annexed  instrument  of  writing,  appeared  before  me  this 
day  in  person,  and  acknowledged  that  signed,  sealed  and  delivered 

the  said  instrument  or  writing  as  free  and  voluntary  act,  for  the  uses 

and  purposes  therein  set  forth. 

Given  under  my  hand  and  notarial  seal  this  day  of 

A.D.  186 

Notary  Public, 


(92.) 
Mortgage  of  a  Vessel. 

Know  all  Men  by  these  Presents,  That  I  (or  we,  giving  the  names  and 
residence  of  all  the  mortgagors')  am  (or  are) 

held  and  firmly  bound  unto  (the  names  and  residence  of  the  mortgagees)  in  the 

just  and  full  sum  of  dollars,  lawful  money  of  the  United  States 

of  America,  to  be  paid  to  the  said  or  his  (or  their)  executors, 

administrators  or  assigns :  for  which  payment  well  and  truly  to  be  made,  I  bind 


350  THE  LAW  OF  SHIPPING. 

myself,  my  heirs,  executors  and  administrators  firmly  by  these 

presents. 

Dated  at  this  day  of  in 

the  year  one  thousand  eight  hundred  and 

Whereas,  (name  of  the  mortgagee)  has  this  day  lent  and  advanced  unto 

the  said        (name  of  the  mortgagor)  the  sum  of  dollars  on 

the  body,  tackle  and  appurtenances  of  the  or 

vessel  called  the  of  the  burden  of  tons,  or 

thereabouts ;  the  said  (name  of  the  mortgagor)  being  the  (owner)  of  the 

same. 

Now  the  Condition  of  this  Obligation  is  such,  That  if  the  said 
(name  of  the  mortgagor)  shall  pay  or  cause  to  be  paid  to  the  said  (name  of  the 

mortgagee)  the  sum  of  dollars  (the  amount  loaned),  and  interest 

thereon  on  or  before  the  day  of 

in  the  year  18 

then  this  obligation  to  be  void ;  otherwise,  to  remain  in  full  force  and  virtue.     And 
in  consideration  of  and  as  security  for  said  loan  as  aforesaid,  the  said  (vessel, 

or  ship,  or  steamer,  as  it  may  be)  is  by  these  presents  assigned,  pledged,  mortgaged, 
set  over  and  conveyed  to  the  said  heirs  and  assigns ;  the 

certificate  of  the  enrolment  of  which  vessel  is  as  follows,  viz. :  — 
(Enrolment  as  in  the  previous  form  of  a  Bill  of  Sale  of  a  Vessel.') 

It  being  Mutually  Understood  and  Agreed,  That  hi  case  the  amount 
of  said  loan  and  interest,  or  any  part  thereof,  according  to  the  terms  of  these 
presents,  shall  remain  due  and  unpaid  to  said  (name  of  mortgagee)  after  the  expira- 
tion of  the  said  (name  of  mortgagee)  may  take  possession 
of  said  and  appurtenances,  and  sell  the  same  at  public  auction, 
in  order  to  satisfy  the  amount  then  due,  without  any  proceedings  in  court  or  other- 
wise, for  the  purpose  of  authorizing  such  sale,  and  thereupon  may  execute  and 
deliver  a  sufficient  bill  of  sale  to  transfer  completely  to  any  purchaser  or  purchasers 
all  title  and  property  in  and  to  the  said  and  appurtenances,  to 
the  said  (name  of  mortgagor)  as  (owner)  thereof,  now  belonging. 

The  said  (name  of  the  mortgagee)  thereupon  to  account  to  the  said  (name  of 
the  mortgagor)  for  any  surplus  of  such  sale,  after  paying  all  charges  and  expenses. 

And  in  case  of  such  sale  as  aforesaid,  the  said  (name  of  the  mortgagor)  ex- 

ecutors, administrators  or  assigns,  shall,  whenever  thereto  requested,  make,  execute 
and  deliver  to  such  purchaser  or  purchasers,  another  bill  of  sale  of  said 

and  appurtenances,  in  which  the  enrolment  shall  be  recited  as  above, 
for  the  transferring  completely  to  said  purchaser  or  purchasers  all  the  (right), 
(interest)  and  (claim),  of  said  executors,  administrators  OT 

assigns,  as        (owner)  of  said  And  in  default  of  the  prompt 

execution  and  delivery  of  such  other  bill  of  sale  to  such  purchaser  or  purchasers,  by 
the  said  when  thereto  requested,  the  said  is 

hereby  constituted  and  appointed  the  legal  attorney  of  the  said 


COMMEECIAL  FOBMS.  351 

for  the  purpose  of  making,  executing  and  delivering  such  bill  of  sale ,  and  the  said 

hereby  ratifies  and  confirms  the  act  of  the  said 
as  attorney  for  said  purpose. 

And  it  is  hereby  further  Agreed,  That  insurance  shall  be  made  at  some 
office  in  on  the  said  for  the  security  of  the 

said  (name  of  the  mortgagee)  to  an  amount  not  less  than  the  sum  loaned  as 
aforesaid,  and  the  said  (name  of  the  mortgagee)  is  hereby  authorized  to  procure 
such  insurance,  at  the  expense  of  the  said  (name  of  the  mortgagor)  if  not 
seasonably  obtained  by  him. 

(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 
(  Witness.) 

STATE  OF  ^ 

>  88. 

COUNTY  OF  ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came 

to  be  the  individual  described  in,  and  who  executed  the  foregoing  instrument, 
and  acknowledged  that  he  executed  the  same. 


(93.) 
A  Charter-Party. 

This  Charter-Party,  Made  and  concluded  upon  in  the 

day  of  in  the  year  one  thousand  eight 

hundred  and  between  (name  of  the  owner)  owner  of  the 

of  of  the  burden  of  tons 

or  thereabouts,  register  measurement,  now  lying  in  the  harbor  of 
of  the  first  part,  and  (name  of  the  hirer)  of  the  second  part,  witnesseth,  that  the 
said  part  of  the  first  part,  for  and  in  consideration  of  the  covenants  and  agree- 
ments hereinafter  mentioned,  to  be  kept  and  performed  by  the  said  part  of  the 
second  part,  do  covenant  and  agree  on  the  freighting  and  chartering  of  the  said 
vessel  unto  the  said  part  of  the  second  part,  for  the  voyage  from  the  port  of 

on  the  terms  following ;  that  is  to  say,  — 

First.  The  said  part  of  the  first  part  do  engage  that  the  said  vessel  in  and 
during  the  said  voyage  shall  be  kept  tight,  stanch,  well-fitted,  tackled,  and  provided 
with  every  requisite,  and  with  men  and  provisions  necessary  for  such  a  voyage. 

Second.  The  said  part  of  the  first  part  do  further  engage  that  the  whole  of 
said  vessel  (with  the  exception  of  the  cabin,  the  deck,  and  the  necessary  room  for 
the  accommodation  of  the  crew,  and  of  the  sails,  cables,  and  provisions)  shall  be  at 
the  sole  use  and  disposal  of  the  said  part  of  the  second  part  during  the  voyage 


352  THE  LAW  OF  SHIPPING. 

aforesaid ;  and  that  no  goods  or  merchandise  whatever  shall  be  laden  on  board, 
otherwise  than  from  the  said  part    of  the  second  part,  or  agent,  without 

consent,  on  pain  of  forfeiture  of  the  amount  of  freight  agreed  upon  for  the  same. 

Third.  The  said  part  of  the  first  part  do  further  engage  to  take  and  receive 
on  board  the  said  vessel,  during  the  aforesaid  voyage,  all  such  lawful  goods  and 
merchandise  as  the  said  part  of  the  second  part,  or  agents,  may  think  proper 
to  ship. 

And  the  said  part    of  the  second  part,  for  and  in  consideration  of  the  covenants 
and  agreements  to  be  kept  and  performed  by  the  said  part    of  the  first  part,  do 
covenant  and  agree  with  the  said  part      of  the  first  part,  to  charter  and  hire  the 
said  vessel  as  aforesaid,  on  the  terms  following,  that  is  to  say :  — 

First.  The  said  part  of  the  second  part  do  engage  to  provide  and  furnish  ta 
the  said  vessel 

Second.  The  said  part  of  the  second  part  do  further  engage  to  pay  to  the  said 
part  of  the  first  part,  or  agent,  for  the  charter  or  freight  of  the  said  vessel 

during  the  voyage  aforesaid,  in  the  manner  following,  that  is  to  say :  — 

It  is  further  agreed  between  the  parties  to  this  instrument,  that  the  said  part 
of  the  second  part  shall  be  allowed,  for  the  loading  and  discharging  of  the  vessel  at 
the  respective  ports  aforesaid,  lay  days  as  follows,  that  is  to  say :  — 

and  in  case  the  vessel  is  longer  detained,  the  said  part        of  the  second  part  agree 

to  pay  to  the  said  part    of  the  first  part,  demurrage  at  the  rate  of 
Spanish  milled  dollars  per  day  for  each  and  every  day  so  detained,  provided  such 
detention  shall  happen  by  default  of  the  said  part      of  the  second  part,  or 
agent. 

It  is  further  understood  and  agreed,  that  the  cargo  shall  be  received  and  de- 
livered alongside  within  reach  of  the  vessel's  tackles. 

It  is  also  further  understood  and  agreed,  that  this  charter  shall  commence  when 
the  vessel  is  ready  to  receive  cargo  at  her  place  of  loading,  and  notice  thereof  is 
given  to  the  part  of  the  second  part,  or  to  agent 

To  the  true  and  faithful  performance  of  all  the  foregoing  covenants  and  agree- 
ments, the  said  parties,  each  to  the  other,  do  hereby  bind  themselves,  their  executors, 
administrators  and  assigns,  and  also  the  said  vessel,  freight,  tackle,  and  appur- 
tenances ;  and  the  merchandise  to  be  laden  on  board,  each  to  the  other,  in  the 
penal  sum  of 

In  Witness  "Whereof,  The  said  parties  have  hereunto  interchangeably  set 
their  hands  and  seals  this  day  of  185 

(Signatures.')     (Seafe.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 

(  Witnesses.) 


COMMERCIAL  FOEMS.  353 

(94.) 
A  Bill  of  Lading. 

Shipped,  in  good  order  and  well  conditioned,  by  (name  of  the  shipper)  on 

board  the  called  the  whereof  is 

master,  now  lying  in  the  port  of  and  bound  for 

To  say  :  —        (here  describe  or  enumerate  the  parcels) 

being  marked  and  numbered  as  in  the  margin,  and  are  to  be  delivered  hi  the  like 

good  order  and  condition,  at  the  aforesaid  port  of  (the  dangers 

of  the  seas  only  excepted),  unto  (the  name  of  the  consignee)  or  to         assigns,  he  or 

they  paying  freight  for  the  said 

(here  specify  the  rate  of  freight  agreed  to  be  paid) 

with  primage  and  average  accustomed. 

In  "Witness  Whereof,  The  master  or  purser  of  the  said  vessel  hath  affirmed 
to  bills  of  lading,  all  of  this  tenor  and  date ;  one  of  which  being  accom- 

plished, the  others  to  stand  void. 

Dated  in  the  day  of  185 

(Signature.) 

(95.) 
Shipping  Articles,  in  Common  Use. 

United  States  of  America.  It  is  agreed,  between  the  master  and  seamen, 
or  mariners,  of  the  (name  of  the  vessel)  of  whereof 

is  at  present  master,  or  whoever  shall  go  for  master,  now  bound  from  the  port 
of  ,  to 

And  it  is  hereby  expressly  agreed,  that  should  the  said  ship  on  the  said  voyage 
oe  seized,  detained,  or  fined,  for  smuggling  tobacco,  or  any  other  article,  by  one  or 
more  of  the  undersigned  sailors,  cooks,  or  stewards,  they  shall  all  be  responsible  for 
the  damages  thence  resulting,  and  shall  severally  forfeit  their  wages,  and  all  then* 
goods  and  chattels  on  board,  to  the  amount  of  such  damage,  and  that  the  certificate 
of  the  person  or  persons  who  may  seize,  detain,  or  fine  the  said  ship  for  smuggling, 
signed  by  him  or  them,  and  verified  by  the  American  consul  at  under 

his  seal  of  office,  shall  be  conclusive  evidence  of  the  facts  therein  stated,  in  all 
courts  whatsoever,  especially  and  as  to  the  fact  that  smuggling  had  been  committed, 
the  individual  or  individuals  by  whom  the  same  had  been  committed,  the  amount 
of  the  fine  imposed  therefor  upon  the  said  ship,  the  incidental  expenses  thereon, 
and  the  number  of  days  the  said  ship  was  detained  in  consequence  thereof.  No 
grog  allowed,  and  none  to  be  put  on  board  by  the  crew ;  and  no  profane  language 
allowed,  nor  any  sheath-knives  permitted  to  be  brought  or  used  on  board. 

That,  in  consideration  of  the  monthly  or  other  wages  against  each  respective 


364  THE  LAW  OF  SHIPPING. 

seaman  or  mariner's  name  hereunder  set,  they  severally  shall  and  will  perform  the 
above-mentioned  voyage :  And  the  said  master  doth  hereby  agree  with  and  hire 
the  said  seamen  or  mariners  for  the  said  voyages,  at  such  monthly  wages  or  prices, 
to  be  paid  pursuant  to  this  agreement,  and  the  laws  of  the  Congress  of  the  United 
States  of  America :  And  they,  the  said  seamen  or  mariners,  do  severally  hereby 
promise  and  oblige  themselves  to  do  their  duty,  and  obey  the  lawful  commands  of 
their  officers  on  board  the  said  vessel,  or  the  boats  thereunto  belonging,  as  become 
good  and  faithful  seamen  or  mariners ;  and  at  all  places  where  the  said  vessel  shall 
put  in,  or  anchor  at,  during  the  said  voyage,  to  do  their  best  endeavors  for  the 
preservation  of  the  said  vessel  and  cargo,  and  not  to  neglect  or  refuse  doing  their 
duty  by  day  or  night,  nor  shall  go  out  of  the  said  vessel  on  board  any  other  vessel, 
or  be  on  shore,  under  any  pretence  whatsoever,  until  the  above-said  voyage  be 
ended,  and  the  said  vessel  be  discharged  of  her  loading,  without  leave  first  obtained 
of  the  captain  or  commanding  officer  on  board :  that  in  default  thereof,  he  or  they 
will  be  liable  to  all  the  penalties  and  forfeitures  mentioned  in  the  Marine  Law, 
enacted  for  the  government  and  regulation  of  seamen  in  the  merchants'  service,  in 
which  it  is  enacted,  "  That  if  any  seaman  or  mariner  shall  absent  himself  from  on 
board  the  ship  or  vessel,  without  leave  of  the  master  or  officer  commanding  on 
board,  and  the  mate  or  other  officer  having  charge  of  the  log-book,  shall  make  an 
entry  therein  of  the  name  of  such  seaman  or  mariner,  on  the  day  on  which  he  shall 
BO  absent  himself;  and  if  such  seaman  or  mariner  shall  return  to  his  duty  within 
forty-eight  hours,  such  seaman  or  mariner  shall  forfeit  three  days'  pay  for  every  day 
which  he  shall  so  absent  himself,  to  be  deducted  out  of  his  wages ;  but  if  any  seaman 
or  mariner  shall  absent  himself  for  more  than  forty-eight  hours  at  one  time,  he  shall 
forfeit  all  wages  due  to  him,  and  all  his  goods  and  chattels  which  were  on  board 
the  said  ship  or  vessel,  or  in  any  store  where  they  may  have  been  lodged  at  the 
time  of  his  desertion,  to  the  use  of  the  owner  or  owners  of  the  said  ship  or  vessel, 
and  moreover  shall  be  liable  to  pay  him  or  them  all  damages  which  he  or  they  may 
sustain  by  being  obliged  to  hire  other  seamen  or  mariners  hi  his  or  then1  place." 

And  it  is  further  agreed,  that  in  case  of  desertion,  death,  or  imprisonment,  the 
wages  are  to  cease. 

And  it  is  further  agreed  by  both  parties,  that  each  and  every  lawful  command 
which  the  said  master  or  other  officer  shall  think  necessary  hereafter  to  issue  for 
the  effectual  government  of  the  said  vessel,  suppressing  immorality  and  vice  of  all 
kinds,  shall  be  strictly  complied  with,  under  the  penalty  of  the  person  or  persons 
disobeying  forfeiting  his  or  their  whole  wages  or  hire,  together  with  every  thing 
belonging  to  him  or  them  on  board  the  said  vessel. 

And  it  is  further  agreed  on,  that  no  officer  or  seaman  belonging  to  the  said  vessel 
shall  demand  or  be  entitled  to  his  wages,  or  any  part  thereof,  until  the  arrival  of 
said  vessel  at  the  said  vessel's  final  port  of  discharge,  and  her  cargo  delivered. 

And  it  is  hereby  further  agreed,  between  the  master,  officers,  and  seamen  of  the 
said  vessel,  that  whatever  apparel,  furniture,  and  stores  each  of  them  may  receive 
into  their  charge,  belonging  to  the  said  vessel,  shall  be  accounted  for  on  her  return ; 
and  in  case  any  thing  shall  be  lost  or  damaged,  through  their  carelessness  or  insuffi- 


COMMEECIAL  FOBMS.  355 

ciency,  it  shall  be  made  good  by  such  officer  or  seaman,  by  whose  means  it  may 
happen,  to  the  master  and  owners  of  the  said  vessel. 

And  whereas,  it  is  customary  for  the  officers  and  seamen,  while  the  vessel  is  in 
port,  or  while  the  cargo  is  delivering,  to  go  on  shore  at  night  to  sleep,  greatly  to 
the  prejudice  of  such  vessel  and  freighters,  be  it  further  agreed  by  the  said  parties, 
that  neither  officer  nor  seaman  shall,  on  any  pretence  whatever,  be  entitled  to  such 
indulgence,  but  shall  do  their  duty  by  day  in  discharge  of  the  cargo,  and  keep  such 
watch  by  night  as  the  master  shall  think  necessary  to  order  relative  to  said  vessel 
or  cargo ;  and  whereas  it  frequently  happens  that  the  owner  or  captain  incurs 
expenses  while  in  a  foreign  port,  relative  to  the  imprisonment  of  one  or  more  of 
his  officers  or  crew,  or  in  the  attendance  of  nurses,  or  in  the  payment  of  board  on 
shore  for  the  benefit  of  such  person  or  persons :  now  it  is  understood  and  agreed  by 
the  parties  hereunto,  that  all  such  expenditures  as  may  be  incurred  by  reason  of 
the  foregoing  premises  shall  be  charged  to,  and  deducted  out  of  the  wages  of,  any 
officer  or  such  one  of  the  crew  by  whose  means  or  for  whose  benefit  the  same  shall 
have  been  paid. 

And  whereas,  it  often  happens  that  part  of  the  cargo  is  embezzled  after  being 
safely  delivered  into  lighters,  and  as  such  losses  are  made  good  by  the  owners  of 
the  vessel,  be  it  therefore  agreed  by  these  presents,  that  whatever  officer  or  seaman 
the  master  shall  think  proper  to  appoint,  shall  take  charge  of  her  cargo  in  the 
lighters,  and  go  with  it  to  the  lawful  quay,  and  there  deliver  his  charge  to  the 
vessel's  husband,  or  his  representative,  to  see  the  same  safely  landed. 

That  each  seaman  or  mariner  who  shall  well  and  truly  perform  the  above-men- 
tioned voyage  (provided  always  that  there  be  no  desertion,  plunderage,  embezzle- 
ment, or  other  unlawful  acts  committed  on  the  said  vessel's  cargo  or  stores)  shall 
be  entitled  to  the  payment  of  the  wages  or  hire  that  may  become  due  to  him  pursu- 
ant to  this  agreement,  as  to  their  names  is  severally  affixed  and  set  forth :  Provided, 
nevertheless,  that  if  any  of  the  said  crew  disobey  the  orders  of  the  said  master  or 
other  officer  of  the  said  vessel,  or  absent  himself  at  any  tune  without  liberty,  his 
wages  due  at  the  time  of  such  disobedience  or  absence  shall  be  forfeited ;  and  in 
case  such  person  or  persons  so  forfeiting  wages  shall  be  reinstated  or  permitted  to 
do  further  duty,  it  shall  not  do  away  such  forfeiture.  It  being  understood  and 
agreed,  by  the  said  parties,  that  parol  proof  of  the  misconduct,  absence,  or  desertion 
of  any  officer  or  any  of  the  crew  of  said  vessel,  may  be  given  in  evidence  at  any 
trial  between  the  parties  to  this  contract,  any  act,  law,  or  usage  to  the  contrary 
thereof  notwithstanding. 

In  Testimony  "Whereof,  and  for  the  due  performance  of  each  and  every 
of  the  above-mentioned  articles  and  agreements,  and  acknowledgment  of  their 
being  voluntarily,  and  without  compulsion  or  any  other  clandestine  means  being 
used,  agreed  to  and  signed  by  us,  we  have  each  and  every  of  us  hereunto  affixed 
our  hands,  the  month  and  day  against  our  names  as  hereunder  written. 

And  it  is  hereby  understood,  and  mutually  agreed,  by  and  between  the  parties 
aforesaid,  that  they  will  lender  themselves  on  board  the  said  vessel,  on  OA  before 

the  day  of  18 

%t  o'clock  in  the  noon. 


356  THE  LAW  OF  SHIPPING. 

This  is  signed  by  all  the  officers  and  crew,  under  seventeen  col- 
umns, which  give  the  following  particulars  :  Date  of  entry,  names, 
stations,  birthplace,  age,  height  in  feet  and  inches,  wages  per  month, 
advance  wages,  advance  abroad,  hospital  money,  time  of  service  in 
months  and  days,  whole  wages,  wages  due,  sureties,  witness.  On 
the  back  of  this  instrument  is  usually  a  receipt  in  full  in  the  follow 
ing  words.  It  should  be  remarked,  however,  that  the  sailor's  dis- 
charge of  all  demands  for  assault  and  battery  or  imprisonment,  &c., 
is  of  little,  if  any,  legal  force. 

We,  the  undersigned,  late  mariners  on  board  the  on  her 

late  voyage  described  on  the  other  side  of  this  instrument,  and  now  performed  to 
this  place  of  payment,  do  hereby,  each  one  for  ourselves,  •with  our  signatures,  ac 
knowledge  to  have  received  of  agent  or  owner  of  said 

the  full  sum  hereunder  set  against  our  names ;  being  in  full  amount  of  our  wages 
for  our  services,  and  all  demands  for  assault  and  battery,  or  imprisonment,  of  what- 
ever name  or  nature,  against  said  her  owners  or  officers,  to  the 
day  or  date  hereunder  also  set  against  our  names. 

(Signatures.) 

(96.) 
A  Bottomry  Bond. 

Know  all  Men  by  these  Presents,  That  I  (name  of  the  master,  or  of  the 
owner  if  the  Bond  is  made  ly  him)  now  master  and  commander  of  the  or 

vessel  called  the  of  the  burden  of  tons,  or  thereabouts, 

now  lying  in  the  port  of  am  held  and  firmly  bound  unto       (name 

of  the  lender,  who  is  the  obligee  of  the  Bond) 

in  the  sum  of  lawful  money  of  the  United  States  of  America, 

to  be  paid  to  the  said  or  to 

certain  attorney  executors,  administrators,  or  assigns ;  for  which  payment,  well 
and  truly  to  be  made,  I  bind  myself,  my  heirs,  executors,  and  administrators,  and 
also  the  said  vessel,  her  tackle,  apparel,  and  furniture,  firmly  by  these  presents. 
Sealed  with  my  seal,  at  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

Whereas,  The  above  bounden     (name  of  the  obligor)  has  been  obliged  to  take 
up  and  borrow,  and  hath  received  of  the  said 

for  the  use  of  the  said  vessel,  and  for  the  purpose  of  fitting  the  same  for  sea,  the 
sum  of  lawful  money  of  the  United  States  of  America,  which 

sum  is  to  be  and  remain  as  a  lien  and  bottomry  on  the  said  vessel,  her  tackle, 
apparel,  and  furniture, 


COMMERCIAL  FORMS.  357 

At  the  rate  or  premium  of  {state  the  rate  of  the  maritime  interest)  for  the  voyage.  In 
consideration  whereof,  all  risks  of  the  seas,  rivers,  enemies,  fires,  pirates,  &c.,  are  to 
be  on  account  of  the  said  (name  of  the  lender).  And  for  the  better  security  of 
the  said  sum  and  premium,  the  said  master  doth,  by  these  presents,  hypothecate 
and  assign  over  to  the  said  heirs,  executors,  administrators,  and 

assigns,  the  said  vessel,  her  tackle,  apparel,  and  furniture, 

And  it  is  hereby  declared,  that  the  said  vessel,  is  thus  hypothecated 

and  assigned  over  for  the  security  of  the  money  so  borrowed,  and  taken  up  a° 
aforesaid,  and  shall  be  delivered  for  no  other  use  or  purpose  whatever,  until  this 
bond  is  first  paid,  together  with  the  premium  hereby  agreed  to  be  paid  thereon. 

Now  the  Condition  of  this  Obligation  is  such,  That  if  the  above 
bounden  (the  borrower)  shall  well  and  truly  pay,  or  cause  to  be  paid,  unto  the 

said  (the  lender) 

the  just  and  full  sum  of  lawful  money  as  aforesaid,  being  the 

sum  borrowed,  and  also  the  premium  aforesaid,  at  or  before  the  expiration  of 
days  after  the  arrival  of  the  said  vessel  at 

then  this  obligation,  and  the  said  hypothecation,  to  be  void  and  of  no  effect,  other- 
wise to  remain  in  full  force  and  virtue.  Having  signed  and  executed  two  bonds 
of  the  same  tenor  and  date,  one  of  which  being  accomplished,  the  other  to  be 
void  and  of  no  effect. 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 

I  do  not  give  the  form  of  a  Respondentia  Bond.  This  contract  is 
now  unusual,  and  is  made  only  when  some  special  emergency  calls 
for  it,  and  must  then  be  framed  to  suit  that  emergency,  and  express 
the  special  terms  of  the  bargain.  The  foregoing  form,  in  connec- 
tion with  what  is  said  of  Respondentia  Bonds  in  the  text,  and  the 
points  in  which  they  resemble  Bottomry  Bonds  and  those  in  which 
they  differ  from  them,  will  enable  any  one  to  frame  a  Respondentia 
Bond  suited  to  most  cases. 


(97.) 
Oath  or  Affirmation  of  Consignee  or  Agent. 

District  and  Port  of  Philadelphia.    I  (name  of  the  consignee) 

do  solemnly  and  truly  swear  (or  affirm)  that  the  invoice  and  bill  of  lading  now 
presented  by  me  to  the  collector  of  ,  are  the  true  and  only  invoice 

and  bill  of  lading  by  me  received,  of  all  the  goods,  wares,  and  merchandise,  im- 
ported in  the  (name  of  the  vessel)  whereof 


358  THE  LAW  OF  SHIPPING. 

is  master,  from  for  account  of  any  person  whomsoever, 

for  whom  I  am  authorized  to  enter  the  same :  that  the  said  invoice  and  bill  of 
lading  are  in  the  state  in  which  they  were  actually  received  by  me,  and  that  I  do 
not  know  nor  believe  in  the  existence  of  any  other  invoice,  or  bill  of  lading  of  the 
said  goods,  wares,  and  merchandise ;  that  the  entry  now  delivered  to  the  collector 
contains  a  just  and  true  account  of  the  said  goods,  wares,  and  merchandise  accord- 
ing to  the  said  invoice  and  bill  of  lading  :  that  nothing  has  been,  on  my  part,  nor 
to  my  knowledge,  on  the  part  of  any  other  person,  concealed  or  suppressed,  whereby 
the  United  States  may  be  defrauded  of  any  part  of  the  duty  lawfully  due  on  the 
said  goods,  wares,  and  merchandise,  and  that  if,  at  any  time  hereafter,  I  discover 
any  error  in  the  said  invoice,  or  in  the  account  now  rendered  of  the  said  goods, 
wares,  and  merchandise,  or  receive  any  other  invoice  of  the  same,  I  will  immedi- 
ately .make  the  same  known  to  the  collector  of  the  district 

And  I  do  further  solemnly  and  truly  swear  (or  affirm)  that,  to  the  best  of  my  knowl- 
edge and  belief,  (name  and  residence  of  the  owner  of  the  goods)  is  owner 
of  the  goods,  wares,  and  merchandise,  mentioned  in  the  annexed  entry ;  that  the 
invoice  now  produced  by  me  exhibits  the  actual  cost,  or  fair  market-value, 

of  the  said  goods,  wares, 

and  merchandise,  all  the  charges  thereon,  and  no  other  or  different  discount,  bounty, 
or  drawback,  but  such  as  has  been  actually  allowed  on  the  same. 

this  day  of  18 

(Signature.) 

Before  me,  Collector. 


(98.) 
Custom  House  Power  of  Attorney.    No.  201. 

Know  all  Men  by  these  Presents,  That  I  (name  of  principal) 

do  make,  constitute,  and  appoint  (name  of  attorney)  my  true  and  lawful  attor- 
ney for  me  and  in  my  name  and  stead  to  enter  in  due  form  of  law,  at  the  Custom 
House  in  the  city  of  all  goods,  wares,  and  merchandise,  which 

have  been  imported  or  may  hereafter  be  imported  by  or 

which  have  arrived,  consigned,  or  may  hereafter  arrive,  consigned  to 

or  in  which  or  may  be  interested  or  concerned. 

And  for  me  and  hi  my  name  and  stead  to  sign,  seal,  execute,  and  deliver  all 
and  every  bond  and  bonds  which  may  be  required  to  secure  the  duties  thereon,  or 
for  the  transportation  or  exportation  of  the  same ;  or  any  other  bond  or  bonds 
required  by  the  revenue  laws  or  the  regulations  of  the  Treasury  Department  of  the 
United  States,  or  the  collector  of  the  customs  of  the  district  of 
relative  to  any  such  merchandise ;  or  which  may  be  necessaiy  to  obtain  the 
debenture  and  debentures,  upon  such  of  the  said  goods,  wares,  and  merchandise  as 


COMMERCIAL  FORMS.  359 

may  be  exported  for  me  or  on  my  account.     To  have,  take,  and  receive  all  deben- 
ture certificates  to  be  issued  thereupon  for  me  and  in  my  name 

to  indorse,  assign,  and  transfer  the  same ;  or  have,  take,  and 
receive  the  moneys  due  and  to  grow  due  thereon :  And  generally,  as  my  attorney 
to  do,  transact,  and  perform  all  custom-house  business,  of  what  kind  soever,  in 
which  I  am  or  may  be  interested  or  concerned,  as  fully  and  effectually,  to  all 
intents  and  purposes,  as  I  if  present  there  in  person,  could  do ;  also  to  set  my  seal 
to  any  instrument  which  may  be  necessary  in  the  premises,  and  the  same  to 
acknowledge  for  me  to  be  my  deed ;  and  generally  to  do  and  perform  all  things 
relating  to  the  premises,  which  I  could  lawfully  do,  if  personally  present,  and  as 
fully  and  effectually  to  every  intent  and  purpose,  although  the  same  should  seem 
to  require  more  precise  or  special  authority  than  is  herein  expressed.  And 
especially  authorizng  and  empowering  my  said  attorney,  for  me  and  in  my  name 
and  stead  to  sign,  seal,  execute,  and  deliver  all  bonds  of  indemnity  and  other 
specialities,  and  also  all  other  documents  which  may  be  necessary  for  effecting  the 
premises ;  hereby  ratifying  all  and  whatsoever  my  said  attorney  may  lawfully  do  by 
virtue  hereof. 

And  I  hereby  further  authorize  my  said  attorney  at  any  time,  and  from  time  to 
time  at  his  discretion,  by  proper  letters  of  attorney,  to  substitute  any  other  person 
or  persons  for  himself  in  my  place,  and  the  same  at  his  pleasure  to  revoke  ;  hereby 
giving  to  the  substitute  or  substitutes,  as  full  power  and  authority  in  the  premises, 
as  is  hereby  given  to  my  said  attorney.  And  also  hereby  ratifying  and  confirming 
all  and  every  act,  matter,  and  thing,  that  my  said  attorney  or  his  substitute  or  sub- 
stitutes may  do  hi  the  premises,  by  virtue  of  these  presents. 

And  it  is  hereby  declared  and  understood,  that  this  power  shall  be  and  remain 
in  full  force  and  virtue  until  revoked  by  written  notice  given  to  the  collector. 

In  Witness  Whereof,  I  have  have  hereunto  set  my  hand    and  seal    this 
day  of  18 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of 

STATE  OF 

Be  it  Known,  That  on  the  day  of  18 

personally  appeared  and 

acknowledged  before  me  the  foregoing  power  of  attorney  to  be  free  act 

and  deed. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal  of  office 
the  day  of  18 


360  THE  LAW  OF  SHIPPING. 

(99.) 

Maritime  Protest. 
UNITEI>  STATE:®  OF 

Notary, 
STATE  OF  COUNTY  OF 

By  this  Public  Instrument  of  Protest,  Be  it  known,  that  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  before  me,  a  Notary  Public  in 

and  for  the  State  of  County  of  and  dwelling  in 

the  city  of  ,  State  of  ,  duly  commissioned  and 

sworn,  personally  came  and  appeared  (names  of  all  the  parties  who  make  the 

protest,  with  a  description  of  each  of  them,  as  to  occupation  and  residence) 
which  said  appearers,  after  having  been  duly  sworn  by  me,  the  said  notary,  upon 
the  Holy  Evangelists  of  Almighty  God,  voluntarily,  freely  and  solemnly  declare 
and  depose  as  follows,  to  wit :  that  the  (name  of  the  vessel,  describing  her  gen- 

erally) on  the  day  of  in  the  year   18 

sailed  from  the  port  of  bound  for  the  port  of 

with  a  cargo  of  that  when  they  started,  as  aforesaid,  the 

said  was  stout,  stanch  and  strong ;  had  her  cargo  well  and 

sufficiently  stowed  and  secured ;  was  well  manned,  tackled,  victualled,  apparelled 
and  appointed ;  and  was  in  every  respect  fit  for  the  voyage  she  was  about  to  under- 
take :   And  thereafter,  on  the  day  of  in  the  year  18 
(here  must  be  set  forth  with  some  minuteness  the  place  of  any  accident  or  loss,  and  the 
circumstances  of  the  occurrence) 

Now,  therefore,  because  of  the  premises,  and  as  all  the  loss,  damage  and  injury 
which  already  have  or  may  hereafter  appear  to  have  happened  or  accrued  to  the 
said  or  her  said  cargo,  has  been  occasioned  solely  by  the  cir- 

cumstances hereinbefore  stated,  and  cannot  nor  ought  not  to  be  attributed  to  any 
insufficiency  of  the  said  or  default  of  him,  the  said 

his  officers  or  crew ;  he  now  requires  me,  the  said  notary,  to  make  his  protest  and 
this  public  act  thereof,  that  the  same  may  serve  and  be  and  remain  in  full  force  and 
virtue,  as  of  right  shall  appertain.  And  thereupon  the  said 

doth  protest,  and  I,  the  said  notary,  at  his  special  instance  and  request,  do,  by  these 
presents,  publicly  and  solemnly  protest  against  winds,  weather  (and  whatever  else 
caused  the  loss,  as  fire,  or  pirates,  §*c.),  and  against  all  and  every  accident,  matter 
and  thing,  had  and  met  with  as  aforesaid,  whereby  or  by  means  whereof  the 
said  or  her  cargo,  already  has,  or  hereafter 

shall  appear  to  have  suffered  or  sustained  damage  or  injury,  for  all  losses,  costs 
charges,  expenses,  damages,  and  injury,  which  the  said  the 

owner  or  owners  of  the  said  or  the  owners,  freighters  or  shippers 

of  her  said  cargo,  or  any  other  person  or  persons  concerned  in  either,  already  have 


COMMERCIAL  FOEMS.  361 

or  may  hereafter  pay,  sustain,  incur,  or  be  put  unto  by,  through,  or  on  account  of 
the  premises,  or  for  which  the  insurer  or  insurers  of  the  said  or 

her  cargo,  is  or  are  respectively  liable  to  pay,  or  make  contribution  or  average, 
according  to  custom,  or  their  respective  contracts  or  obligations ;  so  that  no  part 
of  such  losses  and  expenses  already  incurred,  or  hereafter  to  be  incurred,  do  fall 
upon  him,  the  said  his  officers  and  crew. 

We,  (repeat  here  the  names  of  the  appear -ers)  do  solemnly  swear  that  the  fore- 
going statement  is  correct,  and  contains  a  true  account  of  all  the  facts  and  circum- 
stances of  the  case,  to  the  best  of  our  knowledge. 

(Signatures  of  all  the  appearers.) 

Thus  Done  and  Protested,  at  my  office,  in  the  city  of  ,  this 

day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  sixty 

Notary  Public,  County  of  State  of 

To  all  to  whom  these  Presents  shall  come :  I,  Notary 

Public,  duly  commissioned  and  qualified,  residing  at  ,  in  the 

County  of  and  State  of  ,  do  hereby  certify 

that  the  foregoing,  purporting  to  be  a  copy  of  the  protest  of  the  master  and  a  part 
of  the  crew  of  the  bearing  date  the  day 

of  last,  is  a  true  and  correct  copy  of  said  protest,  which  was 

made  before  me,  examined  and  compared  with  the  original  draft  of  the  same,  drawn 
up  and  recorded  in  my  office,  in  Book  page  and  following : 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand,  and  affixed  my 
notarial  seal,  this  day  of  A.D.  18 

(Signature)     (Seal.) 

(100.) 
A  Steamboat  Warrant,  as  used  in  the  Western  States. 

Know  all  Men  by  these  Presents,  That  we  (name  of  debtor) 

as  principal,  and         (names  of  owners  of  the  steamboat)  owners  of  the  steamboat 

as  security,  are  held  and  firmly  bound 

unto         (name  of  creditor)  in  the  sum  of  dollars,  for  the 

payment  of  which  we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
firmly  by  these  presents.     Sealed  with  our  seals,  and  dated  this 
day  of  eighteen  hundred  and  sixty 

The  Condition  of  the  above  Obligation  is  such,  That,  whereas,  the 
said        (name  of  creditor)  as  plaintiff  has  sued  out  of  the  office  of 
justice  of  the"  peace,  a  warrant  against  the  steamboat  (name  of  the  steamboat) 

returnable  forthwith ;  being  on  a  demand  for  the  sum  of  dollars, 

and  cents. 


362  MARINE  INSURANCE. 

Now,  if  the  said  (name  of  the  debtor)  shall  satisfy  the  amount  whxch  shall  be 
adjudged  to  he  owing  and  due  to  the  said  plaintiff  in  the  determination  of  said 
suit,  together  with  all  costs  accruing,  then  this  obligation  to  be  void,  otherwise  to 
remain  in  full  force. 

(Signatures.')     (Seals.) 

Approved,  Sheriff  (or  Constable') 


CHAPTER  XXVI. 


SECTION  I. 

HOW  THE  CONTKACT  OF  INSURANCE  IS  MADE. 

AT  the  present  day  insurance  is  seldom  made  by  individuals. 
Formerly,  this  was  the  universal  custom  in  our  commercial  cities. 
Afterwards,  companies  were  incorporated  for  the  purpose  of  making 
insurance  on  ships  and  their  cargoes ;  and  the  manifold  advantages 
of  this  method  have  caused  it  to  supersede  the  other.  But  an  in- 
surance company  is  not  bound  to  insure  for  all  who  offer,  and  it  has 
been  held  that  an  action  will  not  lie  against  insurers  for  combining 
not  to  insure  for  a  certain  person,  however  malicious  their  motive 
may  be. 

The  contract  of  insurance  binds  the  insurer  to  indemnify  the  in- 
sured against  loss  or  injury  to  certain  property  or  interests  which  it 
specifies,  from  certain  perils  which  it  also  specifies.  The  considera- 
tion for  this  obligation  on  the  part  of  the  insurer  is  the  premium 
paid  to  the  insurer,  or  promised  to  be  paid  to  him,  by  the  insured. 

The  instrument  in  which  this  contract  is  expressed  is  called  a 
Policy  of  Insurance.  But  no  instrument  is  essential  to  the  validity 
of  the  contract ;  for  if  the  proposals  of  the  insured  are  written  in 


HOW  THE  CONTRACT  OP  INSURANCE  IS  MADE.      363 

the  usual  way  in  the  proposal  book  of  the  insured,  and  signed  by 
their  officer  with  the  word  "  done  "  or  "  accepted,"  or  in  any  usual 
way  to  indicate  that  the  bargain  is  made,  it  is  valid,  although  no 
policy  be  delivered ;  and  it  would  be  construed  as  an  insurance  upon 
the  terms  expressed  in  the  policy  commonly  used  by  that  company. 

If  proposals  are  made,  on  either  side,  by  letter,  and  accepted  by 
the  other  party,  also  by  letter,  this  is  a  valid  contract  of  insurance 
as  soon  as  the  party  accepting  has  mailed  his  letter  to  that  effect,  if 
he  have  not  previously  received  notice  of  a  withdrawal  of  the  pro- 
posals. 

The  form  of  the  policy  is  generally  that  which  has  been  used  for 
many  years  both  in  England  and  in  this  country,  with  such  changes 
and  modifications  only  as  will  make  it  express  more  accurately  the 
bargain  between  the  parties.  And  for  this  purpose  it  may  be  and  ia 
varied  at  pleasure. 

It  is  subscribed  only  by  the  insurers;  but  binds  both  parties- 
The  insured  are  bound  for  the  premium,  although  no  note  is  given. 
The  date  may  be  controlled  by  evidence  showing  when  it  was  made 
and  delivered ;  but  if  delivered  after  its  date,  it  takes  effect  at  and 
from  its  date,  if  that  were  the  intention  of  the  parties. 

It  may  be  effected  on  application  of  an  agent  of  the  insured,  if  he 
have  full  authority  for  this  purpose  ;  which  need  not  be  in  writing. 
But  a  mere  general  authority,  even  if  it  related  to  commercial  mat- 
ters, or  to  a  ship  itself,  as  that  of  a  "  ship's  husband,"  is  not  suf- 
ficient. 

A  party  may  be  insured  who  is  not  named,  if  "  for  whom  it  may 
concern,"  or  words  of  equivalent  import,  are  used.  But  a  party 
who  seeks  to  come  in  under  such  a  clause  must  show  that  he  was 
interested  in  the  property  insured  at  the  time  the  insurance  was 
made,  and  that  he  was  in  the  contemplation  of  the  party  asking  in- 
surance. The  phrase  "  on  account  of  owners  at  the  time  of  loss," 
or  an  equivalent  phrase,  will  bring  in  those  who  were  intended,  if 
they  owned  the  property  when  the,  loss  occurred,  although  there 
were  assignments  and  transfers  between  the  time  of  insurance  and 
the  loss. 

Each  person  whose«several  interest  is  actually  insured  by  any  such 
general  phrase  may  demand  or  sue  in  his  own  name. 

25 


364  MABINE   IXSUKANCE. 

If  the  nominal  insured  is  described  as  "  agent"  generally,  this  ia 
equivalent  to  "  for  all  whom  it  may  concern."  And  an  insurance 

«  for "  will  be  read  as  for  all  whom  it  may  concern,  if  that 

were  intended.  So,  if  the  designation  of  the  insured  be  common  to 
many  persons,  the  intention  of  the  parties  must  decide  for  whom  it 
is  made.  "Whatever  is  written  on  any  part  of  the  sheet  containing 
the  policy,  or  even  on  a  separate  paper,  if  referred  to  or  signed  by 
the  parties  as  a  part  of  the  policy,  is  thereby  made  a  part  of  it. 

But  things  said  by  either  party  while  making  their  bargain,  or  writ- 
ten on  other  paper,  and  not  so  referred  to  or  signed,  form  no  part  of 
it.  The  policy  may  expressly  provide  that  its  terms  shall  be  made 
definite,  especially  as  to  the  property  insured,  by  subsequent  indorse- 
ments or  additions.  Thus,  it  is  very  common  to  insure  property  to  a 
certain  amount,  "  from  A  to  B,  on  board  ship  or  ships,  as  shall  here- 
after be  indorsed  on  this  policy."  And  when  this  or  any  equivalent 
phrase  is  used,  the  insured  requests  the  insurers  to  indorse  on  the 
policy  the  name  of  the  vessel,  and  the  amount  shipped,  as  soon  as 
he  has  notice  of  it. 

Alterations  may  be  made  at  any  time  by  consent.  But  a  material 
alteration  by  either  party,  without  the  consent  of  the  other,  renders 
the  contract  void ;  although  it  was  made  honestly,  in  the  hope  or 
belief  of  its  being  assented  to.  A  court  of  equity  will  correct  a 
material  mistake  of  fact. 

A  policy  may  be  assigned,  and  the  assignee  may  sue  in  the  name 
of  the  assignor.  If  the  loss  is  made  by  the  policy  payable  "  to 
order  "  or  "  to  bearer,"  it  will  then  be  negotiable  by  indorsement  or 
delivery,  but  it  is  not  certain  that  the  transferee  can  even  then  sue  in 
his  own  name.  In  New  York  and  some  other  States,  not  only  these 
assignees,  but  other  assignees  of  debts  or  contracts,  may  sue  in  their 
own  names. 

If  the  insured  transfers  the  property,  unaccompanied  by  a  trans- 
fer of  the  policy  with  consent  of  the  insurer,  this  discharges  the 
policy,  unless  it  was  expressly  made  for  the  benefit  of  whoever 
should  be  owner  at  the  time  of  the  loss,  as  before  stated.  There  ia 
usually  a  clause  to  the  effect  that  the  policy  is  void  if  assigned  with- 
out the  consent  of  the  insurers.  But  this  does  not  apply  to  an  as- 
signment by  force  of  law,  as  in  a  case  of  insolvency,  or  in  a  case  of 


THE  INTEREST  OF  THE  INSURED.  365 

death.  And  after  a  loss  has  occurred,  the  claim  against  the  in- 
surers is  always  assignable  like  any  other  debt.  And  a  seller  who 
remains  in  possession  of  the  property  as  trustee  for  the  purchaser, 
or  a  mortgagor  retaining  possession,  may  retain  the  policy,  and  pre- 
serve his  rights. 


SECTION  n. 

THE  INTEREST  OF  THE  INSURED. 

THE  contract  of  Insurance  is  a  contract  of  indemnity  for  loss. 
The  insured  must  therefore  be  interested  in  the  property  at  the 
time  of  the  loss.  The  value  to  be  paid  for  may  be  agreed  upon 
beforehand,  and  expressed  in  the  policy,  which  is  then  called  a 
valued  policy  ;  or  left  to  be  ascertained  by  proper  evidence,  and  the 
policy  is  then  called  an  open  policy. 

This  valuation,  if  in  good  faith,  is  binding  on  both  parties,  even 
if  it  be  very  high  indeed.  But  a  wager  policy,  that  is,  one  without 
interest,  is  void  ;  and  although  there  be  some  interest,  the  valuation 
may  still  be  so  excessive  as  to  be  open  to  the  objection  that  the  in- 
terest is  a  mere  cover,  and  that  the  contract  is  void  because  only  one 
cf  wager.  The  valuation  is  void  if  fraudulent  in  any  respect ;  as  if 
it  cover  an  illegal  interest  or  peril.  And  in  this  case  the  fraud 
vitiates  and  avoids  the  whole  contract,  and  the  insured  recovers 
nothing.  And  if  the  valuation  is  gross  and  excessive,  fraud  may  be 
presumed. 

The  insured  may  apply  his  valuation  to  the  whole  property,  or  to 
that  part  of  it  which  he  wishes  to  insure  ;  thus  he  may  cause  him- 
self to  be  insured  for  one-half  of  a  cargo,  the  whole  of  which  is 
valued  at  $20,000,  or  for  one-half,  which  half  is  valued  at  120,000  ; 
and  if  the  policy  says,  "  Insured  $15,000  on  half  the  ship  Scipio 
(or  on  her  cargo),  valued  at  $20,000,"  whether  it  is  meant  that  the 
whole  ship  (or  cargo)  is  valued  at  $20,000,  or  the  half  only  that  is 
insured,  will  be  determined  by  a  reasonable  construction  of  the  lan- 
guage used.  If  he  owns  the  whole,  the  valuation,  in  general,  will 
be  held  to  apply  to  the  whole  ;  and  only  to  a  part,  if  he  owns  only  a 
part. 


366  MARINE  INSURANCE. 

He  may  value  one  thing  insured,  and  not  another ;  or  may  value 
the  same  thing  in  one  policy,  and  not  in  another,  and  then  the  valua- 
tion does  not  affect  the  policy  which  does  not  contain  it.  If  only  a 
part  of  the  goods  included  in  the  valuation  are  on  board  and  at  risk, 
it  applies  to  them  in  due  proportion  to  their  value. 

A  valuation  of  an  outward  cargo  may  be  taken  as  a  valuation  of 
a  return  cargo,  substituted  for  the  other  by  purchase,  and  covered 
by  the  same  policy.  And  a  valuation  will  cover  the  insured's  whole 
interest  in  the  thing  valued,  including  the  premium,  unless  a  differ- 
ent purpose  is  expressed  or  indicated. 

A  valuation  of  freight  applies  to  the  freight  of  the  whole  cargo ; 
and,  if  a  part  only  be  at  risk,  it  applies  in  proportion.  And  it  ap- 
plies either  to  the  whole  voyage,  or  to  freight  earned  by  voyages 
which  form  parts  of  the  whole,  as  may  be  intended  and  expressed. 

If  profits  are  insured  as  such,  they  are  generally  valued,  but  may 
be  insured  by  an  open  policy.  If  they  are  valued,  the  loss  of  the 
goods  on  which  the  profits  were  to  have  been  made  implies  in  this 
country  a  loss  of  the  valued  profits,  without  proof  that  there  would 
have  been  any  profit  whatever  ;  it  seems  to  be  necessary  in  England 
to  show  that  there  would  have  been  some  profit,  and  then  the  valua- 
tion attaches. 

It  is  very  common  to  insure  profits,  in  fact,  without  saying  any 
thing  about  them,  by  a  valuation  of  the  goods  sufficiently  high  to 
include  all  the  profits  that  can  be  made  upon  them. 

In  an  open  policy,  where  the  value  insured  is  to  be  determined 
by  evidence,  the  value  of  the  property  —  whether  ship  or  goods — 
which  is  insured,  is  its  value  when  the  insurance  took  effect,  includ- 
ing the  premium  of  insurance  ;  as  the  law  of  insurance  intends 
indemnifying  the  assured  as  accurately  as  may  be  for  all  his  loss. 
If  a  ship  be  insured,  its  value  throughout  the  insurance  is  the  same 
as  at  the  beginning,  without  allowance  for  the  effect  of  time  upon 
it.  And  all  its  appurtenances,  in  a  mercantile  sense  of  this  phrase, 
enter  into  this  value. 

"While  the  value  of  the  property  does  not  vary  with  time,  the  inter- 
est of  the  insured  at  the  time  of  the  loss  (which  may  be  the  whole, 
or  half,  or  any  other  part)  is  that  on  which  he  founds  his  claim. 
Thus,  if  an  owner  of  a  ship  is  insured  $20,000  on  ship  A.  B.,  valued 


THE  INTEEEST  WHICH  MAY  BE  INSURED.  367 

at  $30,000,  and  afterwards  sells  half  of  the  ship,  and  it  is  subse- 
quently lost,  he  recovers  only  $10,000.  But  if  he  owned  half  origi- 
nally, and  insured  that,  and  before  the  loss  acquired  the  other  half, 
he  recovers  only  for  the  half  insured. 

Generally,  the  value  of  goods  is  their  invoice  price,  with  all  those 
charges,  commissions,  wages,  &c.,  which  enter  into  the  cost  to  the 
owner,  when  the  risk  commences.  The  drawback  is  not  deducted  ; 
and  the  expenses  incurred  after  the  risk  begins,  as  for  freight,  &c., 
are  not  included.  And  the  rate  of  exchange  at  the  beginning  of 
the  risk  is  taken. 


SECTION    III. 
THE  INTEREST   WHICH   MAY   BE   INSURED. 

A  MEBE  possibility  or  expectation  cannot  be  insured ;  but  any 
actual  interest  may  be.  If  one  has  contracted  to  buy  goods,  he 
may  insure  them,  and  will  recover  if  the  property  be  in  him  at  the 
time  of  the  loss  ;  for  if  they  are  then  destroyed,  it  will  be  his  loss. 
(For  what  is  meant  by  the  property  being  in  him,  see  the  chapter 
on  Sales.) 

/If  one  has  taken  on  himself  certain  risks,  or  agreed  to  indemnify 
another  for  them,  he  may  insure  himself  against  the  same  risks. 
The  policy  may  express  and  define  the  interest  in  such  a  way  that 
any  change  in  the  nature  of  it  will  discharge  the  insurance.  If  it  is 
not  so  defined  and  declared,  a  change,  as  from  the  interest  of  an 
owner  to  that  of  a  mortgagor,  or  of  a  mortgagee,  will  not  defeat  the 
policy. 

A  mere  indebtedness  to  a  party  on  account  of  property  gives  the 
creditor  no  insurable  interest ;  thus,  one  who  repaired  a  house  or  a 
ship  cannot  insure  the  house  or  ship  merely  because  the  owner  owes 
him  ;  but  if  the  creditor  has  a  lien  on  the  property,  this  is  an  insur- 
able interest.  And,  generally,  every  bailee  or  party  in  possession  of 
goods,  with  a  lien  on  them,  may  insure  them.  And  a  lender  on 
bottomry  or  respondentia  may  insure  the  ship  or  goods.  And  any 
persons  who  have  possession  of  property,  or  a  right  to  possession, 


368  MARINE  ESTSUEANCE. 

and  may  legally  make  a  profit  out  of  it,  as  factors  on  commission, 
consignees,  or  carriers,  may  insure  their  interest. 

If  a  mortgagee  be  insured,  and  recovers  from  the  insurers,  he, 
generally  at  least,  transfers  to  them  the  security  for  his  debt,  or  ac- 
counts with  them  for  its  value ;  because,  to  the  extent  of  that  secur- 
ity, he  has  met  with  no  loss,  and,  if  he  did  not  transfer  it,  would 
recover  his  money  twice.  It  should,  however,  be  added  that  where 
a  mortgagee,  or  one  having  a  lien,  insures  his  own  interest  in  prop- 
erty, a  payment  of  a  loss  to  him  by  the  insurers  does  not  discharge 
the  debt  for  which  the  mortgage  or  the  lien  is  the  security.  Where, 
however,  the  mortgagee  is  trustee  for  the  mortgagor,  as  where  the 
mortgagor  causes  insurance  to  be  made  on  the  premises,  payable  to 
the  mortgagee  in  case  of  loss,  or  where  the  mortgagee  effects  insur- 
ance at  the  expense  of  the  mortgagor,  with  his  consent,  payment  by 
the  insurers  would  go  in  discharge  of  the  debt. 

A  policy  usually  adds  to  the  description  of  the  property,  "  lost  or 
not  lost."  This  phrase  makes  the  policy  retrospective  ;  and  attaches 
it  to  the  property  if  that  existed  when,  by  the  terms  of  the  policy, 
the  insurance  began,  whether  this  were  for  a  voyage  or  for  a  certain 
time,  although  it  had  ceased  to  exist  when  the  policy  was  made. 

An  interest  which  was  originally  valid  and  sufficient  cannot  be 
defeated  by  that  which  threatens,  but  does  not  complete  an  actual 
divestment  of  the  interest  in  property  ;  therefore,  not  by  attachment, 
or  an  execution  for  debt ;  nor  by  liability  to  seizure  by  government 
for  forfeiture  ;  nor  a  right  in  the  seller  to  stop  the  goods  in  transitu ; 
nor  capture ;  because  after  all  these  the  property  may  remain  in  or 
return  to  the  insured.  But  sale  on  execution,  actual  seizure  by  gov- 
ernment and  forfeiture,  stoppage  in  transitu,  or  condemnation  by 
court  as  lawful  prize,  divest  the  property,  and  therefore  discharge 
the  insurance. 

The  insurance  never  attaches  if  the  interest  is  illegal  originally ; 
and  it  is  discharged  if  the  interest  becomes  illegal  subsequent  to 
the  insurance,  or  if  an  illegal  use  of  the  subject-matter  of  the  in 
surance  is  intended.  And  any  act  is  illegal  which  is  prohibited  by 
law,  or  made  subject  to  a  penalty.  The  effect  would  be  the  same  if 
the  policy  opposes  distinctly  the  principles  and  the  purposes  of  law, 
as  wagering  policies  do. 


THE  INTEREST  WHICH  MAY  BE  INSUBED.  369 

Mariners,  or  mates,  are  not  permitted  by  the  law-merchant  to  in- 
bure  their  wages,  but  may  insure  goods  on  board,  bought  with  their 
wages ;  and  one  legally  interested  in  the  wages  of  a  mariner  may 
insure  them  ;  as  one  to  whom  they  are  assigned  by  order  or  other- 
wise. A  master  may  insure  his  wages,  commissions,  or  any  profit 
he  may  make  out  of  his  privilege.  * 

An  unexecuted  intention  of  illegality,  if  not  distinctly  acted  upon, 
will  not  defeat  a  policy  ;  nor  a  remote  and  incidental  illegality ;  as 
smuggling  stores  on  board,  or  not  having  on  board  the  provisions 
required  by  law ;  nor  a  change  from  legality  to  illegality,  which  can- 
not be  proved  or  supposed  to  be  known  to  the  insured.  And  upon 
these  questions,  the  court,  if  the  case  be  balanced,  will  incline  to 
the  side  of  legality.  A  cargo  may  be  insured  which  is  itself  lawful, 
but  was  purchased  with  the  proceeds  of  an  illegal  voyage. 

If  a  severable  part  of  a  cargo  or  a  voyage  is  legal,  it  may  be  in- 
sured, by  itself,  although  other  parts  are  illegal.  But  if  a  part  of 
the  whole  property  insured  together  is  illegal,  this  avoids  the  whole 
policy. 

A  compliance  with  foreign  registry  laws  is  not  necessary,  and 
with  our  own  probably  is  not,  to  sustain  the  insurance  of  an  actual 
owner  in  good  faith. 

Freight  is  a  common  subject  of  insurance.  In  common  conversa- 
tion, this  word  means  sometimes  the  cargo  carried,  and  sometimes 
the  earnings  of  the  ship  by  carrying  the  cargo.  The  latter  is  the 
meaning  in  mercantile  law,  and  especially  in  the  law  of  insurance. 
It  includes  in  insurance  law  the  money  to  be  paid  to  the  owner  of  a 
ship  by  the  shipper  of  goods,  and  also  the  earnings  of  an  owner  by 
carrying  his  own  goods  ;  and  the  amount  to  be  paid  to  the  owner 
by  the  hirer  of  his  ship,  and  also  the  profits  of  such  hirer,  either  by 
carryi'ng  his  own  goods,  or  by  carrying,  for  pay,  the  goods  of 
others. 

.  An  interest  in  freight  begins  as  soon  as  the  voyage  is  determined 
upon,  and  the  ship  is  actually  ready  for  sea,  and  goods  are  on  board, 
or  are  ready  to  be  put  on  board,  or  are  promised  to  be  put  on  board 
by  a  contract  which  binds  the  owner  of  the  goods  to  put  them  on 
board,  for  that  voyage. 

If  a  ship  is  insured  on  a  voyage  which  is  to  consist  of  many  pas- 


370  MARINE  INSURANCE. 

\ 

sages,  and  sails  without  cargo,  but  a  cargo  is  ready  for  her,  or  con- 
tracted for  her  at  the  first  port  she  is  to  reach  and  sail  from,  the 
owner  has  an  insurable  interest  in  the  freight  from  the  day  on  which 
she  sails  from  his  home  port. 

If  one  makes  advances  towards  the  freight  he  is  to  pay,  and  this 
is  to  be  repaid  to  him  by  the  ship-owner  if  the  freight  is  not  earned, 
the  advancer  has  no  insurable  interest  in  what  he  advances  ;  but  if 
he  is  to  lose  it,  without  repayment,  if  the  ship  be  lost  or  the  freight 
not  earned,  he  has  an  insurable  interest. 


SECTION  IV. 

PRIOR  INSURANCE. 

OUR  marine  policies  generally  provide  for  this  by  a  clause  to  the 
effect  that  the  insurer  shall  be  liable  only  for  so  much  of  the  prop- 
erty as  a  prior  insurance  shall  not  cover.  The  second  covers  what 
the  first  leaves,  the  third  what  the  second  leaves,  and  so  on  ;  and  as 
soon  as  the  whole  value  of  the  property  is  covered,  the  remainder 
of  that  policy,  and  the  subsequent  policies,  have  no  effect.  This 
priority  relates  not  merely  to  the  date  of  the  instrument,  but  to  the 
actual  time  of  insurance.  Sometimes  the  policy  provides  that  the 
insured  shall  recover  only  the  same  proportion  of  the  whole  loss 
which  the  amount  insured  in  that  policy  is  of  the  whole  amount 
insured  by  all  the  policies  on  the  whole  property. 

Where  no  provision  is  made  in  the  policies  as  to  priority,  all  are 
insurers  alike,  but  all  together  only  of  the  whole  value  at  risk. 
The  insured,  therefore,  may  recover  of  any  one  insurer  at  his  elec- 
tion, and  this  insurer  may  compel  the  others  to  contribute  to  him  in 
proportion  to  their  respective  insurances. 

Insurances  may  be  not  successive,  but  simultaneous,  and  then  no« 
clause  as  to  prior  policies  has  any  application,  for  then  no  policy. is 
prior  to  another,  and  all  the  insurances  are  liable  pro  rota.  They 
are  simultaneous,  if  said  to  be  so  in  the  policies,  which  is  common  ; 
or  if  made  on  the  same  day,  and  bearing  the  same  date,  and  there 
is  no  evidence  as  to  which  was,  in  fact,  first  made. 


THE  MEMOEANDTJM.  37] 

SECTION  V. 
DOUBLE   INSURANCE   AND   RE-INSURANCE. 

IP  there  be  double  insurance,  either  simultaneously  or  by  suc- 
cessive policies  in  which  priority  of  insurance  is  not  provided  for, 
•we  have  seen  that  all  are  insurers,  and  liable  each  in  proportion  ; 
thus,  if  all  the  policies  cover  twice  the  value  of  the  property  insured, 
each  policy  is  valid  for  one-half  of  its  own  amount. 

But  there  is  no  double  insurance,  unless  all  the  policies  insure 
the  very  same  subject-matter,  against  the  same  risks,  and,  taken 
together,  exceed  its  whole  value. 

Many  insurances  of  the  same  subject-matter,  for  the  benefit  of 
different  parties,  do  not  constitute  double  insurance. 

Re-insurance  is  lawful ;  for  whoever  insures  another  has  assumed 
a  risk  against  which  he  may  cause  himself  to  be  insured.  This  is 
often  done  by  companies  who  wish  to  close  their  accounts,  to  lessen 
their  risks,  or  get  rid  of  some  especial  risk. 


SECTION  VI. 
THE    MEMORANDUM. 

THIS  word  is  retained,  because  the  English  policies  have  attached 
to  them  a  note  or  memorandum  providing  that  the  insurers  shall 
not  be  liable  for  any  loss  upon  certain  articles  therein  enumerated 
(and  thence  called  memorandum  articles),  unless  it  be  total,  or 
greater  than  a  certain  percentage.  In  our  policies,  the  same  thing 
is  provided  for,  but  usually  by  a  clause  contained  in  the  body  or 
in  the  margin  of  the  policy.  The  general  purpose  is  to  guard 
against  a  liability  for  injuries  which  may  very  probably  not  arise 
from  maritime  peril,  because  the  articles  are  in  themselves  perish- 
able ;  but  which  injuries  it  might  not  be  easy  to  refer  to  the  precise 
causes  which  produced  them.  Thus,  grain,  fish,  hides,  fruit,  &c., 
are  very  liable  to  be  somewhat  injured  on  the  voyage,  and  if  there 


372  MAHESE  INSUBAKCE. 

has  been  bad  weather,  or  a  greater  leak  than  usual,  it  is  impossible 
to  say  whether  these  goods  have  lost  value  from  their  own  decay,  or 
from  a  peril  of  the  sea.  It  is  therefore  provided,  that  the  insurers 
shall  not  pay  unless  there  be  a  total  loss  by  a  sea-peril,  which  ends 
all  question,  or  so  large  a  loss  as  ten  or  twenty  per  cent ;  for  this 
could  hardly  happen  without  visible  and  certain  cause.  And  then, 
if  the  cause  was  shown  to  be  not  a  peril  insured  against,  the 
insurers  would  not  be  liable. 

The  perishable  articles  thus  excepted,  and  the  percentage  of  loss 
necessary  to  charge  the  insurers,  vary  very  much  at  different  times 
and  in  different  States. 


SECTION    VH. 

EXPRESS   WARRANTIES. 

A  STIPULATION  or  agreement  in  the  policy,  that  a  certain  thing 
shall  be  or  shall  not  be,  is  an  express  warranty.  And  every  war- 
ranty must  be,  if  not  strictly,  at  least  accurately  complied  with. 
Nor  is  it  an  excuse  that  the  thing  is  not  material ;  or  that  the  breach 
was  not  intended,  or  not  known  ;  or  that  it  was  caused  by  an  agent 
of  the  insured.  A  warranty  is  equally  effectual  if  written  upon  a 
separate  paper,  but  referred  to  in  the  policy  itself  as  a  warranty. 
And  the  direct  assertion  or  allegation  of  a  fact  may  constitute  a 
warranty. 

If  the  breach  of  the  warranty  exists  at  the  commencement  of  the 
risk,  it  avoids  the  whole  policy,  although  the  warranty  was  com- 
plied with  afterwards  and  before  a  loss,  and  although  all  other 
risks  were  distinct  from  that  to  which  the  warranty  related.  Thus, 
if  a  vessel  is  warranted  "  coppered,"  and  she  is  not  coppered,  and 
is  lost  by  the  ignition  of  cotton  in  the  hold.  Here,  the  breach  of 
the  warranty,  that  is,  the  want  of  the  copper,  has  nothing  to  do 
with  the  loss  ;  but  the  insurers  would  be  discharged. 

If  the  breach  occur  after  the  risk  begins,  and  before  a  loss,  and  is 
not  caused  or  continued  by  the  fault  of  the  insured,  the  insurers  are 
held ;  and  so  they  are  if  a  compliance  with  the  warranty  becomes 
illegal  after  the  policy  attaches,  and  it  is  therefore  broken. 


IMPLIED  WARRANTIES.  373 

The  usual  subjects  of  express  warranty  are,  first,  the  ownership 
of  the  property,  which  is  chiefly  important  as  it  secures  the  neutrali- 
ty, or  freedom  from  war-risks,  of  the  property  insured.  The-  neu- 
trality of  the  ship  and  of  the  cargo  must  be  proved  by  the  ship's 
having  on  board  all  the  usual  and  regular  documents.  False  papers 
may,  however,  be  carried  for  commercial  purposes,  either  when 
leave  is  given  by  the  insurers,  or  when  it  is  permitted  by  a  known 
and  established  usage. 

If  neutrality  is  warranted,  it  must  be  maintained  by  a  strict 
adherence  to  all  the  rules  and  usages  of  a  neutral  trade  or  employ- 
ment. Without  warranty,  every  neutral  ship  is  bound  to  respect  a 
blockade  which  legally  exists  by  reason  of  the  presence  of  an  armed 
force  sufficient  to  preserve  it,  and  of  which  the  neutral  has  knowl- 
edge. 

The  second  most  common  express  warranty  is  that  of  tho  time  of 
the  ship's  sailing.  She  sails  when  she  weighs  anchor  or  casts  off  her 
fastenings,  and  gets  under  way,  if  the  intention  be  to  proceed  at 
once  to  sea  without  further  delay.  She  must  have  been  actually 
under  way.  But  if  she  moves  with  the  intention  of  prosecuting  her 
voyage,  this  is  sufficient.  But  if  not  entirely  ready  for  sea,  she  has 
not  sailed  by  merely  moving  down  the  harbor.  If  she  moves,  being 
ready  and  intended  for  sea,  but  is  afterwards  accidentally  and  com 
pulsorily  delayed,  this  is  a  sailing.  Nor  is  the  warranty  complied 
with  by  leaving  a  place  to  return  to  it  immediately ;  or  by  going 
from  one  port  of  the  coast  or  island,  which  she  is  warranted  to  leave, 
to  another.  If  the  ship  is  warranted  "  in  such  a  harbor  or  port,"  or 
"  where  the  ship  now  is,"  this  means  at  the  time  of  the  insurance. 
And  "  warranted  in  port "  means  the  port  of  insurance,  unless 
another  port  is  expressed, or  distinctly  indicated. 


SECTION  vm. 

JMPUDED    WABBAJfTTESr 

THE  most  important  of  these  warranties  —  which  the  law  implies, 
or  makes  for  the  parties  without  their  saying  any  thing  about  them, 
although  they  may,  if  they  please,  make  them  for  themselves  —  is 


3V  4  MARINE  INSURANCE. 

that  of  sea-worthiness.  By  this  is  meant,  that  every  person  who  asks 
to  be  insured  upon  his  ship,  by  the  mere  force  and  operation  of  law, 
warrants  that  she  is,  in  every  respect,  — hull,  sails,  rigging,  officers, 
crew,  provisions,  implements,  papers,  and  the  like,  —  competent  to 
enter  upon  and  prosecute  that  voyage  at  the  time  proposed,  and 
encounter  safely  the  common  dangers  of  the  sea.  If  this  warranty 
be  not  complied  with,  the  policy  does  not  attach,  whether  the  breach 
be  known  or  not,  unless  there  is  some  peculiar  clause  in  the  policy 
waiving  this  objection. 

If  the  ship  be  seaworthy  and  the  policy  attaches,  no  subsequent 
breach  discharges  the  insurers  from  their  liability  for  a  loss  previous 
to  the  breach.  Even  if  the  policy  does  not  attach  at  the  beginning 
of  the  voyage,  if  the  unseaworthiness  be  capable  of  prompt  and 
effectual  remedy,  and  be  soon  and  entirely  remedied,  the  policy 
may  then  attach.  If  the  insurance  is  "  at  and  from  "  a  port,  there 
is  no  implied  warranty  in  the  nature  of  a  condition  precedent  to  the 
attaching  of  the  policy,  that  the  vessel  shall  be  then  seaworthy  in  the 
sense  of  being  fit  for  sea,  and  it  is  sufficient  if  she  is  portwortby.  But 
the  policy  is  avoided  if  she  goes  to  sea  in  an  unseaworthy  condition. 
The  general  rule  is,  that,  if  unseaworthiness  prevents  the  policy 
from  attaching  at  the  proper  commencement  of  the  risk,  the  contract 
becomes  a  nullity. 

If  she  becomes  unseaworthy  in  the  course  of  the  voyage,  from  a 
peril  insufficient  to  produce  it  in  a  sound  vessel,  this  may  be  evi- 
dence of  inherent  weakness  and  original  unseaworthiness  ;  and  then 
the  policy  never  attached.     But  if  originally  seaworthy,  and  by  any 
accident  made  otherwise,  the  policy  continues  to  attach  until  she 
can  be  restored  to  a  seaworthy  condition  by  reasonable  endeavors. 
And  the  general  rule  is,  that  she  must  be  so  restored  as  soon  as  she 
can  be.     It  is  the  duty  of  the  master  to  repair  her  as  soon  as  he 
can  ;  by  the  aid  of  another  ship  if  that  may  be,  but  if  otherwise,  not 
.  to  keep  her  at  sea  if  she  can  readily  make  a  port  where  she  can 
be  made  seaworthy ;   and  not  to  leave  that  port  until  she  is  sea- 
worthy.    It  is  the  rule  that  a  ship  must  not  leave  a  port  in  an  un- 
seaworthy condition,  if  she  could  there  be  made  seaworthy ;  if  she 
does,  the  insurers  are  no  longer  held.     But  their  liability  may  be, 
not  destroyed,  but  only  suspended,  if  the  seaworthiness  be  cured 
at  the  next  port,  especially  if  that  be  not  a  distant  port. 


BEPBESENTATION  AND  CONCEALMENT.  375 

There  cannot  possibly  be  a  definite  and  universal  standard  for 
teaworthiness.  The  ship  must  be  fit  for  her  voyage  or  for  her 
place.  But  a  coasting  schooner  needs  one  kind  of  fitness,  a  freight- 
ing ship  to  Europe  another,  a  whaling  ship  another,  a  ship  insured 
only  while  in  port  another.  So  as  to  the  crew,  or  provisions,  or 
papers,  or  a  pilot,  or  certain  furniture,  as  a  chronometer  or  the  like ; 
or  the  kind  of  rigging  or  sails.  In  all  these  respects,  much  depends 
upon  the  existing  and  established  usage.  There  is,  perhaps,  no 
better  test  than  this ;  the  ship  must  have  all  those  things,  and  in 
such  quantity  and  of  such  quality  as  the  law  requires,  provided  there 
is  any  positive  rule  of  law  affecting  them  ;  and  otherwise  such  as 
would  be  deemed  requisite  according  to  the  common  consent  and 
usage  of  persons  engaged  in  that  trade.  And  the  reason  for  this 
rule  is,  that  this  is  exactly  what  the  insurers  have  a  right  to  expect, 
and  if  the  insured  intend  any  thing  less,  or  the  insurers  desire  any 
thing  more,  it  should  be  the  subject  of  special  bargain. 

If  a  policy  be  intended  to  attach  when  a  ship  is  at  sea,  the  ship 
must  be  seaworthy  in  that  sense  and  in  that  way  in  which  a  ship 
of  her  declared  age,  size,  employment,  and  character,  after  being  at 
sea  for  that  time,  under  ordinary  circumstances,  ought  to  be  in,  and 
may  be  expected  to  be  in  by  all  concerned.  The  standard  of  sea- 
worthiness is  to  be  found  from  the  usage  and  understanding  of  mer- 
chants, at  the  place  where  the  ship  belongs,  and  not  at  that  where 
the  ship  is  insured. 


SECTION  IX. 
REPRESENTATION    AND    CONCEALMENT. 

IP  there  be  an  affirmation  or  denial  of  any  fact,  or  an  allegation 
which  would  lead  the  mind  to  a  conclusion,  whether  made  orally 
or  in  writing,  or  by  exhibition  of  any  written  or  printed  paper,  or 
by  a  mere  inference  from  the  words  of  the  policy,  before  the  making 
of  the  policy,  or  at  the  making,  and  the  same  be  false,  and  tend  to 
procure  for  him  who  makes  it  the  bargain,  or  some  advantage  in  the 
bargain,  it  is  a  misrepresentation.  And  it  is  the  same  thing,  whether 
it  refers  to  a  subject  concerning  which  some  representations  were 
necessary,  or  otherwise. 


376  MARINE  INSURANCE. 

Concealment  is  the  suppression  of  a  fact  not  known  to  the  other 
party,  referring  to  the  pending  bargain,  and  material  thereto. 

A  misrepresentation  or  a  concealment  discharges  the  insurers. 
To  have  this  effect,  it  must  continue  until  the  risk  begins,  and  then 
be  material. 

It  is  no  defence,  that  it  was  innocent,  and  arose  from  inadvertence 
or  misapprehension,  because  the  legal  obligation  of  a  full  and  true 
statement  is  absolute ;  nor  that  the  insurers  were  not  influenced  by 
it,  if  it  were  wilfully  made  with  intention  to  deceive. 

If  it  be  in  its  nature  temporary,  and  begins  after  the  risk  begins, 
and  ends  before  a  loss  happens,  the  insurers  are  not  discharged. 
And  if  it  relate  to  an  entirely  separate  subject-matter  of  insurance, 
as  the  goods  only,  and  has  no  effect  upon  the  risk  as  to  the  rest,  as 
the  ship,  for  example,  it  discharges  the  insurers  only  as  to  that  part. 
Ignorance  is  never  an  excuse,  if  it  be  wilful  and  intentional.  If  one 
says  only  he  believes  so  and  so,  the  fact  of  his  belief  in  good  faith  is 
sufficient  for  him.  But  if  he  says  that  is  true  of  which  he  does  not 
know  whether  it  be  true  or  false,  and  it  is  actually  false,  it  is  the 
same  misrepresentation  as  if  he  knew  it  to  be  false.  If  a  statement 
relate  to  the  future,  a  future  compliance  or  fulfilment  is  necessary. 

Any  statement  in  reply  to  a  distinct  inquiry  will  be  deemed  ma- 
terial ;  because  the  question  implies  that  the  insurer  deems  it  mate- 
rial. On  the  other  hand,  the  insured  is  not  bound  to  communicate 
any  mere  expectation  or  hope  or  fear ;  but  only  all  the  facts  material 
to  the  risk. 

SECTION  X. 

WHAT  THINGS  SHOULD  BE  COMMUNICATED. 

Nor  only  ascertained  facts  should  be  stated  by  the  insured,  but 
intelligence,  and  mere  rumors,  if  of  importance  to  the  risk ;  and  it 
has  been  held  that  intelligence  known  to  his  clerks  would  be  gener- 
ally presumed  to  be  known  to  him ;  and  it  is  no  defence,  that  the 
things  have  been  found  to  be  false.  It  has  been  held  that  an  agent 
was  bound  to  state  that  his  directions  were  sent  him  by  express ; 
because  this  indicated  an  emergency.  If  the  voyage  proposed  would 
•violate  a  foreign  law  not  generally  known,  this  should  be  stated. 


THE  PEEMIUM.  377 

It  is  impossible  to  give  any  other  criterion  to  determine  what 
should  be  communicated  than  the  rule  that  every  thing  should  be 
stated  which  might  reasonably  be  considered  in  estimating  the  risk. 
And  so  every  thing  of  any  kind  which  the  insurer  might  reasonably 
wish  to  take  into  consideration  in  estimating  the  value  of  the  risk 
which  he  is  invited  to  assume. 

The  question,  however,  being  one  of  concealment  as  it  affects  the 
estimation  of  the  risk,  it  is  obvious  that  the  insured  need  not  state 
to  the  insurer  things  which  he  already  knows  ;  and  by  the  same 
reason,  he  is  not  bound  to  state  things  which  the  insurer  ought  to 
know,  and  might  be  supposed  to  know. 

If  either  party  says  to  the  other  so  much  as  should  put  the  other 
upon  inquiry  in  reference  to  a  matter  about  which  inquiry  is  easy 
and  would  lead  to  information,  and  the  other  party  makes  no  in- 
quiry, his  ignorance  is  his  own  fault,  and  he  must  bear  the  conse- 
quences of  it. 

An  intention,  which,  if  carried  into  effect,  would  discharge  the 
insurers,  as,  for  example,  an  intention  to  deviate,  need  not  be  stated, 
unless  the  intention  itself  can  be  shown  to  affect  the  risk.  So  a  past 
damage  to  the  property  need  not  be  stated,  unless  it  affects  its  pres- 
ent probability  of  safety. 

A  false  statement  that  other  insurers  have  taken  the  risk  on  such 
or  such  terms  is  a  misrepresentation ;  but  a  false  statement  by  the 
insured  that  he  thinks  they  would  take  it  on  such  terms  is  not  one, 
for  of  this  the  insurers  can  judge  for  themselves. 

Every  statement  or  representation  will  be  construed  rationally, 
and  so  as  to  include  all  just  and  reasonable  inferences.  A  substan- 
tial compliance  with  it  will  be  sufficient ;  and  a  literal  compliance 
•which  is  not  a  substantial  one  will  not.be  sufficient. 


SECTION  XL 

THE    PREMIUM. 

i 

THIS  is  undoubtedly  due  when  the  contract  of  insurance  is  com- 
pleted ;  but  in  practice  in  this  country,  the  premium  in  marine 
insurance  is  usually  paid  by  a  premium  note  on  time,  which  is  given 


378  MAKINE  INSUEAKCB. 

at  or  soon  after  the  delivery  of  the  policy.     If  the  policy  acknowl 
edge  the  receipt  of  the  premium,  and  it  is  not  paid,  this  receipt 
would  be  no  bar  to  an  action  for  it. 

The  premium  is  not  due,  if  the  risk  is  not  incurred ;  whether  this 
be  caused  by  the  non-sailing  of  the  ship ;  or  by  one  insured  on  goods 
not  having  goods  on  board  ;  or  not  so  much  cargo  as  he  is  insured 
for ;  or  by  any  error  or  falsity  in  the  description  which  prevents  the 
policy  from  attaching. 

If  the  premium  be  not  earned,  or  not  wholly  earned,  it  must  bo 
returned  in  whole  or  in  part  by  the  insurers  if  it  have  been  paid  ; 
and  not  charged  in  account  with  the  insured,  if  it  be  impaid. 

The  premium  may  be  partially  earned ;  and  then  there  must  be 
a  part  return  only.  As  if  the  voyage  consist  of  several  passages,  or 
of  "  out  and  home  "  passages,  and  these  are  not  connected  by  the 
policy  as  one  entire  risk  ;  or  if  the  insured  has  some  goods  at  risk, 
but  not  all  which  he  intended  to  insure. 

It  is,  however,  an  invariable  rule,  that  if  the  whole  risk  attaches 
at  all,  that  is,  if  there  be  a  time,  however  short,  during  which  the 
insurers  might,  in  case  of  loss  from  a  sea-peril,  be  called  on  for  the 
whole  amount  they  insure,  there  is  to  be  no  return  of  premium. 

In  this  country,  insurers  usually  retain  one-half  of  one  per  cent 
of  a  returnable  policy.  And  our  policies  contain  a  clause  permit- 
ting the  insurers  to  set  off  the  premium  due  against  a  loss,  whether 
the  note  be  signed  by  the  insured  or  by  another  person. 


SECTION  XIL 
THE    DESCRIPTION   OF    THE   PROPERTY   INSURED. 

THE  description  must  be  such  as  will  distinctly  identify  the  prop- 
erty insured,  as  by  quantity,  marks,  and  numbers,  or  a  reference 
to  the  fact  of  shipment,  or  the  time  of  shipment,  or  the  voyage,  or 
the  consignee ;  or  in  some  similar  and  satisfactory  way  ;  and  no 
mere  mistake  in  a  name,  or  otherwise,  vitiates  the  description  if  it 
leaves  it  sufficiently  certain.  If  different  shipments  come  within 
the  policy,  the  insured  may  attach  it  to  either  by  his  declaration, 


THE  PEEILS  COVEBED  BY  THE  POLICY.  379 

vrhich  may  be  done  after  the  loss,  provided  this  appears  to  have  been 
the  intention  of  the  parties.  "  Cargo,"  "goods  on  board,"  "mer- 
chandise," mean  much  the  same  thing  ;  and  do  not  attach  to  orna- 
ments, clothing,  or  the  like,  owned  by  persons  on  board  and  not 
intended  for  commercial  purposes.  "  Property "  is  the  word  of 
widest  and  almost  unlimited  meaning.  "  Ship  "  or  "  vessel  " 
includes  all  that  belongs  to  it  at  the  time,  —  even  sextants  or  chro- 
nometers belonging  to  the  ship-owner,  and  by  him  appropriated  to 
the  navigation  of  the  ship.  So  it  includes  all  additions  or  repairs 
made  during  the  insurance. 

The  phrase  "  a  return  cargo  "  will  generally  apply  to  a  homeward 
cargo  of  the  party  insured  in  the  same  ship,  however  it  be  procured; 
but  the  phrases  "  proceeds  "  and  "  returns  "  are  generally  regarded 
as  limited  to  a  return  cargo  bought  by  means  of  the  outward  cargo. 
And  neither  of  these,  or  any  similar  phrases,  will  apply  to  the  same 
cargo  brought  back  again,  unless  it  can  be  shown,  by  the  usage,  or 
other  admissible  evidence,  that  this  was  the  intention  of  the  parties. 

The  nature  of  the  interest  of  the  insured  need  not  be  specified, 
unless  peculiar  circumstances,  closely  connecting  this  interest  with 
the  risk,  make  this  necessary.  But  either  a  mortgagor  or  a  mort- 
gagee, a  charterer,  an  assignee,  a  consignee,  a  trustee,  or  a  carrier, 
may  insure  as  on  his  own  property,  and  without  describing  the 
exact  nature  of  his  interest. 


SECTION  xm. 

THE    PERILS    COVEBED    BY   THE    POIJCT. 

THE  policy  enumerates,  as  the  causes  of  loss  against  which  it 
insures,  Perils  of  the  Sea,  Fire,  Piracy,  Theft,  Barratry,  Capture, 
Arrests,  and  Detentions ;  and  "  all  other  perils,"  by  which  is  meant, 
by  construction  of  law,  all  other  perils  of  a  like  kind  with  those 
enumerated. 

It  is  a  universal  rule,  that  the  insurers  are  liable  only  for  extraor- 
dinary risks.  The  very  meaning  of  "  seaworthiness,"  which  the 
insured  warrants,  is  that  the  ship  is  competent  to  encounter  with 

26 


380  MARINE  INSURANCE. 

safety  all  ordinary  perils.  If  she  be  lost  or  injured,  and  the  loss 
evidently  arose  from  an  ordinary  peril,  as  from  common  weather,  or 
the  common  force  of  the  waves,  the  insurers  are  not  liable,  because 
the  ship  should  be  able  to  withstand  these  assaults.  And  if  the  loss 
be  unexplained,  and  no  extraordinary  peril  be  shown  or  indicated, 
this  fact  would  raise  a  very  strong  presumption  of  unseaworthiness. 
As,  for  example,  if  the  vessel  went  down  while  sailing  with  favora- 
ble winds  on  a  calm  ocean. 

It  is  a  universal  rule,  that  the  insurers  are  never  liable  for  a  loss 
which  is  caused  by  the  quality  of  the  thing  lost.  This  rule  applies 
to  the  ship,  her  rigging  and  appurtenances,  when  worn  out  by  age 
or  hard  service.  But  its  most  frequent  application  is  to  perishable 
goods.  The  memorandum  already  spoken  of  provides  for  this  in 
some  degree.  But  the  insurers  are  liable  for  the  loss  of  no  article 
of  merchandise  whatever,  if  that  loss  were  caused  by  the  inherent 
qualities  or  tendencies  of  the  article,  unless  these  qualities  or  ten- 
dencies were  excited  to  action  and  made  destructive  by  a  peril 
insured  against.  Thus,  if  hemp  rots  from  spontaneous  fermenta- 
tion, which  cannot  occur  if  it  be  dry,  the  insurers  are  not  liable  if 
the  loss  arose  from  the  dampness  which  the  hemp  had  when  laden 
on  board ;  but  if  the  vessel  were  strained  by  tempest,  and  her 
seams  opened,  and  the  hemp  was  in  this  way  wet,  and  then  rotted, 
they  are  liable. 

The  insurers  may  take  upon  themselves  whatever  risks  they  choose 
to  assume.  And  express  clauses  in  a  policy,  or  the  uniform  and 
established  usage  and  construction  of  policies,  may  throw  upon 
them,  as  in  fact  it  does,  a  very  large  liability  to  the  owner  or  shipper 
for  the  effects  of  the  misconduct  —  wilful  or  otherwise — of  the 
master  and  crew.  The  clause  relating  to  barratry,  to  be  spoken  of 
presently,  is  of  this  kind. 

If  the  cargo  is  damaged  through  the  fault  of  the  master  or  crew, 
the  shipper  of  the  cargo  has  a  remedy  against  the  owner  of  the  ship. 
But  this  does  not  necessarily  discharge  the  insurers.  If,  however, 
he  enforces  his  claim  against  them,  he  is  bound  to  transfer  to  them 
his  claim  against  the  ship-owner.  For  the  insurers  of  the  cargo,  by 
paying  a  loss  thereon,  put  themselves,  as  it  were,  in  the  position  of 
the  shippers,  and  acquire  their  rights. 


PEKILS  OF  THE  SEA.  —  COLLISION.  381 

SECTION  XIV. 
PEKILS  OF  THE    SEA. 

BY  this  phrase  is  meant  all  the  perils  incident  to  navigation ;  and 
especially  those  arising  from  the  wind  and  weather,  the  state  of  the 
ocean,  and  its  rocks  and  shores.  But  it  will  be  remembered  that 
the  insurers  take  upon  themselves  only  so  many  of  these  as  are 
"  extraordinary."  Hence,  destruction  by  worms  or  by  rats  is  not 
such  a  peril  as  the  insurers  are  liable  for,  because  it  is  not  extraor- 
dinary. It  seems  now  settled  that  fire  is  not  included  among  "  per- 
ils of  the  sea,"  or  "  perils  of  the  river."  But  it  is  usually  men- 
tioned in  the  policy,  as  one  of  the  risks  insured  against. 

If  a  vessel  be  not  heard  from,  it  will  be  supposed,  after  a  reasona- 
ble interval,  that  she  has  perished  ;  but  the  law  has  not  determined 
the  length  of  this  interval  with  any  exactness.  The  presumption 
of  law  will  be,  that  she  was  lost  by  an  extraordinary  peril  of  the  sea, 
and,  of  course,  the  insurers  will  be  answerable  for  her.  But  this 
presumption  may  be  rebutted  by  any  sufficient  evidence,  as  of  un- 
seaworthiness, or  any  other  probable  cause  of  loss. 


SECTION  XV. 

COIXISION. 

COLLISION  is  a  peril  of  the  sea  which  may  deserve  especial  notice. 
In  the  chapter  on  Shipping,  it  has  been  stated,  that,  where  a  collision 
is  caused  by  the  fault  of  one  of  the  ships,  the  ship  in  fault  sustains 
the  whole  loss ;  that  is,  it  must  bear  its  own  loss,  and  must  indem- 
nify the  other  ship  for  the  injury  that  ship  sustains.  It  has  been 
held  that  the  insurers  of  the  ship  in  fault  are  liable  for  the  whole  of 
this  loss,  because  it  is  all  caused  by  collision,  which  is  a  peril  of  the 
sea.  But  the  Supreme  Court  of  the  United  States  have  recently 
decided  that  the  insurers  are  not  held  for  more  than  the  loss  directly 


382  MAEINE  IKSUBANCE. 

sustained  by  the  ship  they  insure,  that  is,  not  for  the  amount  that 
ship  pays  to  the  other  ship  for  injury  done  to  it. 


SECTION  XVI. 

FERE. 

THIS  peril  also  must  come  under  the  common  rule,  that  the 
insurers  will  not  be  held  unless  it  be  caused  by  something  extraordi- 
nary, and  not  belonging  to  the  inherent  qualities  of  the  thing  which 
takes  fire. 

The  insurers  would  be  held  for  any  direct  and  immediate  conse- 
quences of  the  fire ;  and  for  loss  caused  by  the  endeavor  to  extin- 
guish it.  It  is,  indeed,  a  general  rule,  that  the  insurers  are  liable 
for  the  loss  or  injury  which  is  the  natural,  direct,  and  proximate 
effect  of  any  peril  insured  against,  although  the  loss  itself  may  be 
only  the  effect  of  a  preceding  loss ;  as,  if  a  part  of  the  cargo  was 
burned  up,  and  another  part  was  injured  by  water  used  to  arrest  the 
fire,  the  insurers  would  be  liable  for  both  parts. 


SECTION  XVII. 
PIRACY,   BOBBERY,    OB   THEFT. 

THERE  can  be  no  piracy  or  robbery  without  violence ;  but  this  is 
not  necessary  to  constitute  the  crime  of  theft.  Piracy  and  robbery 
are  most  usually  committed  by  strangers  to  the  ship ;  they  may, 
however,  be  committed  by  the  crew ;  and  the.  insurers  are  answer- 
able for  such  a  loss,  unless  it  arose  from  the  fault  of  the  owner. 
Our  policies  now  usually  have  the  phrase  "  assailing  thieves."  This 
excludes  theft  without  violence,  and  all  theft  by  those  lawfully  on 
board  the  vessel,  as  a  part  of  the  ship's  company.  If,  after  ship- 
wreck, the  property  is  stolen,  the  insurers  are  liable,  and  might  be 
so  if  there  were  no  insurance  against  theft,  if  this  was  a  direct 
effect  of  the  wrecking. 


BABEATBY.  —  CAPTUEE,   AEEEST,  AND  DETENTION.          383 

SECTION   XVIII. 
BARRATRY. 

THIS  word  means  any  wrongful  act  of  the  master,  officers,  or 
3rew,  as  any  fraud,  cheat,  or  trick  done  by  them,  or  either  of  them, 
against  the  owner.  If  he  directed  the  act,  or  consented  to  it,  or  by 
his  negligence  or  default  caused  it,  —  whether  he  were  actual 
owner,  or  apparent  or  temporary  owner  by  hiring  the  vessel,  —  it  is 
no  barratry.  But  it  is  not  necessary  that  it  should  be  done  with  an 
intention  hostile  to  him.  For  an  act  otherwise  barratrous  would  be 
none  the  less  so  because  the  committer  of  it  supposed  it  would  be 
for  the  advantage  of  the  owner. 

The  master  being  appointed  by  the  owner,  and  controlled  by  him, 
many  policies  provide  that  they  do  not  insure  against  barratry,  if 
the  insured  be  the  owner  of  the  ship.  The  purpose  of  this  is  obvious ; 
it  is  to  prevent  an  insurance  of  the  owner  against  the  acts  of  one 
for  whom  the  owner  ought  to  hold  himself  responsible.  The  effect 
of  the  clause  is  to  limit  the  insurance  against  barratry  to  goods 
shipped  by  one  who  is  not  owner  of  the  vessel. 

As  a  general  rule,  the  insurers  are  liable  for  the  misconduct  of 
the  crew,  when  all  usual  and  reasonable  precautions  have  been 
taken  by  the  owner,  and  his  servant,  the  master,  to  prevent  such 
misconduct. 

SECTION  XIX. 

CAPTURE,    ARREST,   AND   DETENTION. 

THE  phrase  which  refers  to  these  perils  is  usually  in  these  words : 
"  Against  all  captures  at  sea,  or  arrests,  or  detentions  of  all  kings, 
princes,  and  people."  Almost  every  word  of  this  sentence  has  been 
the  subject  of  litigation  or  of  discussion.  The  provision  has  been 
held  to  apply  not  only  to  captures,  arrests,  or  detentions  by  public 
enemies,  by  foreign  belligerent  powers,  but  to  those  by  the  very 
government  of  which  the  insured  is  himself  a  subject,  unless  the 
same  be  for  a  breach  of  the  law  by  the  insured.  Then  the  insurers 


384  MATURE  INST7BANCE. 

are  not  liable,  because  they  never  are  for  the  consequence  of  an 
illegal  act  of  the  insured.  By  the  "  people  "  are  understood  the 
sovereign  power  of  a  State,  whatever  be  its  form  of  government. 
"  Capture  "  and  "  seizure  "  are  equivalent ;  they  differ  from  "  de- 
tention "  in  this  respect :  the  two  former  words  mean  a  taking  with 
intent  to  keep  ;  the  latter,  a  taking  with  intent  to  restore  the  prop- 
erty. "  Arrest "  is  any  taking  possession  of  the  property  for  any 
hostile  or  judicial  purpose. 


SECTION  XX. 

THE    GENERAL    CLAUSE. 

THIS  clause  has  a  very  limited  operation.  We  have  already 
remarked,  that  it  is  usually  restricted  to  perils  of  a  like  kind  with 
those  already  enumerated;  and  although  this  phrase  has  been 
declared  to  be  substantial  and  material,  it  might  be  difficult  to  hold 
an  insurer  liable  under  this  clause,  when  he  would  not  have  been 
L\ible  under  some  one  of  the  enumerated  perils. 


SECTION   XXI. 
PROHIBITED    TRADE. 

THIS  is  not  the  same  with  contraband  trade  (which  belongs  to 
war),  although  the  words  are  sometimes  used  as  if  they  were 
synonymous.  It  is  perfectly  lawful  for  a  ship  to  break  through  a 
blockade  if  it  can,  or  to  carry  arms  or  munitions  of  war  to  a 
belligerent.  This  would  be  contraband  trade.  And  it  is  perfectly 
lawful  for  the  State  whose  enemy  is  thus  aided,  to  catch,  seize,  and 
condemn  the  vessel  that  does  this,  if  it  can.  The  vessel  takes  upon 
itself  this  risk ;  and  it  is  not  covered  by  a  common  policy,  unless 
the  purpose  is  disclosed  and  permitted.  Prohibited  trade  belongs  to 
a  time  of  peace.  It  is  either  trade  prohibited  by  the  State  to 
which  the  ship  belongs,  —  and  then  it  is  wholly  illegal,  and  the 


DEVIATION.  385 

insurers  are  not  only  not  answerable  under  a  general  policy  for 
a  loss  occasioned  by  this  breach  of  law,  but  an  express  bargain  to 
that  effect  would  itself  be  illegal  and  void  ;  or  it  may  be  trade 
prohibited  only  by  a  foreign  State.  And  then  it  is  not  an  illegal 
act  in  the  vessel  by  whose  sovereign  it  is  not  prohibited.  The 
intention  to  incur  this  extra  risk  should  be  communicated ;  because 
the  insurers  should  be  enabled  to  take  it  into  consideration.  But 
in  practice,  our  policies  generally,  if  not  universally,  except 
expressly  the  risks  arising  from  prohibited  trade. 

The  parties  may  always  agree  to  add  such  risks,  or  except  such, 
as  they  choose. 


SECTION    XXII. 

DEVIATION. 

As  the  insurers  are  entitled  to  know,  either  from  information 
given  them,  or  from  the  known  course  of  the  trade,  what  risks  they 
assume,  it  is  obvious  that  the  insured  have  no  right  to  change  those 
risks,  and  that,  if  they  do,  the  insurers  are  not  held  to  the  new  risk. 
Such  a  change  of  risk  is  called  a  deviation  ;  it  certainly  discharges 
the  insurers  ;  and  although  the  word  originally  meant  in  law  what 
it  means  commonly,  a  departure  from  the  proper  course  of  the 
voyage,  it  now  means,  in  the  law  of  insurance,  any  departure  from 
or  change  of  the  risks  insured  against.  And  it  discharges  the  in- 
surers, although  it  does  not  increase  the  risk,  as  they  have  a  right  to 
stand  by  the  exact  bargain  they  have  made.  There  may  be  a  devia- 
tion while  the  ship  is  in  port ;  or  where  the  insurance  is  on  time, 
and  no  voyage  is  indicated.  And  a  very  slight  deviation  may  suffice 
to  discharge  the  underwriters. 

But  no  deviation  discharges  the  insurers,  or,  in  the  language  of 
the  law,  no  change  or  risk  is  a  deviation,  unless  it  be  voluntary,  that 
is,  not  if  there  was  or  seemed  to  be  a  sufficient  necessity  for  it. 

The  proper  course  —  a  departure  from  which  is  a  deviation  —  is 
always  the  usual  course,  provided  there  be  a  usage  ;  for  a  master 
is  not  bound  to  follow  their  track  wherever  one  or  two  have  gone 
before,  but  must  be  allowed  his  own  reasonable  discretion.  If  there 


386  MARINE  INSURANCE. 

be  no  course  so  well  established  that  every  one  would  be  expected 
to  follow  it,  the  master  must  go  to  his  destined  port  in  the  most 
natural,  direct,  safe,  and  advantageous  way. 

An  extraordinary  and  unnecessary  protraction  of  a  voyage  would 
be  a  deviation.  But  the  mere  length  of  the  voyage,  without  other 
evidence,  would  not  prove  this. 

Liberty  policies,  so  called,  are  often  made.  That  is,  the  insured 
is  expressly  permitted  to  do  certain  things,  which,  without  such  per- 
mission, would  constitute  a  deviation.  And  a  large  proportion  of 
the  cases  on  the  subject  of  deviation  have  arisen  under  these  poli- 
cies. Most  of  the  phrases  commonly  used  have  been  construed  by 
the  courts ;  and  generally  quite  strictly.  A  liberty  to  "  enter  "  a 
port,  or  "  touch"  at  a  place,  permits  a  ship  to  go  in  and  come  out, 
but  it  permits  little  delay,  because  for  delay  the  word  "  stay  "  or 
"  remain  "  is  necessary. 

It  is  certain  that  no  permission  is  necessary  for  any  change  of 
course  or  risk  that  is  made  for  the  saving  of  life,  or  even  for  the 
purpose  of  helping  the  distressed.  Always  provided,  however,  that 
the  change  of  course,  or  the  delay,  was  no  greater  and  no  longer 
continued  than  this  cause  for  it,  actually  and  rationally  considered, 
required.  It  is,  however,  equally  well  settled,  that  a  change  of 
course  or  of  risk  for  the  purpose  of  saving  property  is  a  deviation 
not  justified  by  its  cause.  A  delay  for  the  purpose  of  towing  a 
vessel  is  certainly  a  deviation,  unless  there  are  persons  on  board 
the  vessel  which  is  towed,  and  they  can  be  saved  in  no  other 
way. 

Sometimes  it  is  intended  that  a  ship  shall  visit  many  ports,  and 
even  go  backwards  and  forwards,  at  places  between  the  port  from 
which  she  sails  and  that  at  which  the  voyage  is  finally  to  terminate. 
Such  purposes  as  this  are  sometimes  provided  for  by  a  policy  on 
time  ;  and  sometimes  by  express  permission  to  go  to  and  trade  at 
certain  ports. 

If  permission  be  given  to  enter  and  stop  at  a  dozen  different  ports, 
the  vessel  may  omit  any  of  them,  or  the  whole,  but  must  visit  in  the 
proper  order  all  to  which  she  does  go.  She  cannot  go  back  and 
forth. 

The  substitution  of  a  new  voyage  for  that  agreed  upon  is  of  course 


THE  TERMINI  OF  THE  VOYAGE,  AND   OP  THE  EISK.        387 

a  deviation,  and  one  that  can  seldom  or  never  be  justified  by  any 
necessity,  so  as  to  carry  the  insurer's  liability  on  the  new  voyage.  If 
an  entirely  new  voyage  is  intended,  and  a  vessel  sails  upon  it,  but  in 
the  same  direction  in  which  she  would  have  gone  on  the  insured 
voyages,  the  policy  never  attaches,  and  the  premium  is  never  earned, 
because  the  ship  never  sails  on  the  insured  voyage.  But  if  the  ship 
is  intended  to  pursue  the  insured  voyage  to  its  proper  terminus,  but 
at  a  certain  point  of  the  voyage  to  deviate  by  going  into  another 
port,  there  is  no  deviation  until  that  point  is  reached,  and  the  devia- 
tion actually  begun  ;  because  it  is  certain  that  no  mere  intention  to 
deviate  discharges  the  insurers  until  it  is  carried  into  execution ; 
and  they  are  liable  for  a  loss  happening  before  the  deviation. 


SECTION    XXIII. 
THE    TERMINI   OF    THE    VOYAGE,  AND    OF    THE    BISK. 

THESE  must  be  distinctly  stated,  whether  they  be  termini  of  time 

or  place.  A  policy  from to  -  — ,  or  from  B  to ,  or 

from to  B,  would  be  void.  Nor  would  it  be  any  better  if  the 

termini  were  na'med  with  apparent  distinctness,  but  in  such  wise  as 
to  mean  nothing,  or  nothing  sufficiently  certain. 

A  policy  takes  effect  from  its  date,  if  the  bargain  was  then  com- 
plete, although  not  delivered  until  afterwards.  And  it  may  be 
remarked,  that,  if  there  be  an  unreasonable  delay  in  the  sailing  of 
the  vessel,  the  policy  never  attaches,  for  the  bargain  is  considered 
as  annulled. 

A  policy  on  a  vessel  "  at,"  such  a  place  attaches  when  she  is 
there  in  safety.  But  if  there  were  a  policy  "  to"  a  place,  and  an- 
other was  made  out  between  the  same  parties  "  at,"  or  "  at  and 
from,"  the*  same  place,  the  law  would  presume  that  the  parties  in- 
tended that  the  second  policy  should  attach  whenever  the  first  ono 
ceased  by  the  arrival  of  the  ship,  without  reference  to  the  condition 
of  the  ship  or  her  peril  at  the  time. 

A  policy  on  goods  attaches  to  them  at  the  time  when  it  would 
have  attached  to  the  vessel  had  she  been  insured.  The  extent 


388  MAKINE  INSUEANCB. 

which  should  be  given  to  the  meaning  of  the  word  "  port "  is  some- 
times a  question  of  some  difficulty ;  but  in  general  all  places  are 
within  a  port  which  belong  to  it  by  mercantile  usage  and  acceptance, 
although  not  within  the  same  municipal  or  legal  precinct. 

"  At  and  from "  covers  a  vessel  in  a  port,  as  well  as  after  she 
leaves  it.  "  From  "  only  covers  the  vessel  after  she  gets  under  way. 
"  At  and  from,"  applied  to  goods,  does  not  cover  them  in  the  port 
when  they  are  on  shore  and  warehoused,  nor  until  they  become  sub- 
ject to  marine  risk,  by  being  water-borne.  They  are,  however, 
covered,  not  only  when  they  reach  the  ship,  but  as  soon  as  they  are 
put  on  board  of  boats  or  lighters,  or  any  other  usual  water  convey- 
ance to  the  ship.  And  if  insured  to  a  port,  they  continue  covered 
after  they  leave  the  ship  by  any  usual  conveyance  for  the  shore, 
until  they  are  safely  landed.  The  word  "  at,"  applied  to  an  island 
or  a  coast,  may  embrace  all  the  ports  therein,  and  cover  the  ship 
while  sailing  from  one  to  another.  "  To  a  port  and  a  market," 
covers  a  voyage  to  the  port,  and  thence  to  every  place  to  which,  by 
mercantile  usage  or  reasonable  construction,  a  ship  may  go  thence 
in  search  of  a  market ;  and  even  to  return  to  that  port,  if  honestly 
with  intent  to  learn  there  where  a  market  could  be  found. 

If  the  insurance  be  to  "  a  port  of  discharge,"  this  docs  not  ter- 
minate if  the  vessel  goes  to  a  port  for  inquiry,  or  for  needful  refresh- 
ment or  repair.  If  it  be  "  a  final  port  of  discharge,"  the  insurance 
ceases  upon  such  parts  of  the  cargo  as  are  left  at  one  port  or  another, 
and  continues  on  the  ship,  and  on  all  the  goods  on  board,  until 
arrival  at  the  port  where  they  will  be  finally  discharged. 

It  is  generally  provided  in  time  policies,  that,  if  the  vessel  be  at 
sea  at  the  expiration  of  the  time  agreed  on,  the  risk  shall  continue 
until  her  arrival  at  a  port  of  discharge,  or  at  her  port  of  destination. 
If  then,  before  the  expiration  of  the  time,  she  is  actually  at  sea,  or 
has  broken  ground  for  the  voyage,  or  if,  when  the  time  expires,  she 
is  in  a  port  of  necessity  or  restraint,  she  is  considered  at  sea,  but  not 
otherwise. 

The  English  policies  and  our  own  contain  a  provision  that  the 
insurance  continues  on  the  ship  "  until  she  shall  be  arrived  and 
moored  twenty-four  hours  in  safety ; "  and  on  the  goods  until  they 
be  "landed,"  or  "  safely  landed." 


TOTAL  LOSS  AND  ABANDONMENT.  389 

Under  this  clause,  the  ship  is  insured  until  moored  in  safety,  so 
far  as  the  perils  insured  against  are  concerned,  but  not  against  the 
peculiar  and  local  dangers  of  the  port,  or  the  possibility  that  a  tem- 
pest there  might  injure  her  when  moored ;  for  these  dangers  con- 
tinue to  exist  as  long  as  she  stays  there,  and  the  liability  of  the 
insurers  would  never  terminate.  If  she  enters  the  harbor,  and, 
before  she  is  moored,  is  blown  off,  or  ordered  into  quarantine,  she 
is  insured  until  this  delay  ceases  and  she  is  safely  moored  in  port. 
And  if  before  or  within  the  twenty-four  hours  a  dangerous  storm 
begins,  but  does  no  damage  to  her  until  after  the  expiration  of  the 
twenty-four  hours,  the  risk  has  terminated,  and  the  insurers  are  not 
liable. 


SECTION   XXIV. 
TOTAL   LOSS   AND    ABANDONMENT. 

THE  law  of  insurance  recognizes  an  actual  total  loss,  and  also  a 
constructive  total  loss.  It  is  actual  when  the  whole  property  passes 
away,  as  by  submersion  or  destruction  by  fire.  It  is  a  constructive 
total  loss,  when  the  ship  or  goods  are  partially  destroyed,  and  the 
law  permits  the  insured  to  abandon  the  salvage  or  whatever  is  saved, 
to  the  insurers,  and  claim  from  them  a  total  loss.  By  "  abandon- 
ment "  is  meant,  in  insurance  law,  the  transferring  of  the  property 
insured,  or  what  is  left  of  it,  to  the  insurers.  The  word  is  used, 
because  originally  the  insured  gave  up,  renounced,  or  abandoned 
the  property,  saying  to  the  insurers,  we  will  have  nothing  more  to 
do  with  it,  and  you  may  do  with  it  what  you  like.  And  the  word  is 
still  always  used,  although  now  it  means  a  transfer.  And  in  the  law 
of  insurance,  a  constructive  total  loss  is  a  partial  loss  made  total  by 
an  exercise  of  the  right  of  abandonment.  That  is,  the  actual  loss 
took  from  the  insured  a  part,  and  the  abandonment  took  the  rest, 
and  so  they  have  lost  all.  A  constructive  total  loss  is  sometimes 
called  a  "  technical "  total  loss. 

-  The  abandonment,  we  say,  transfers  all  that  remains  of  the  prop- 
erty to  the  insurers.  If  nothing  remains,  or  if  that  which  remains 
has  no  value,  there  need  be  no  abandonment,  and  this  is  an  actual 
total  loss. 


390  MARINE  INSURANCE. 

The  insured  never  need  make  an  abandonment  if  he  chooses  not 
to  do  so.  And  if  from  such  choice  or  neglect  he  makes  no  aban- 
donment, his  claim  against  the  insurers  is  still  valid  ;  but  it  is  a 
different  claim  from  that  which  it  would  have  been  if  he  had  aban- 
doned, because  it  is  now  to  be  settled  as  a  partial  loss,  of  which  we 
shall  speak  hereafter.  For  it  is  the  purpose  and  effect  of  an  abandon- 
ment to  convert  an  actual  partial  loss  into  a  constructive  total  loss. 
And  if  he  makes  an  abandonment  when  he  has  no  right  to  make  it, 
such  abandonment  is  wholly  inoperative,  unless  the  insurers  choose 
to  accept  it ;  but  if  they  accept  it,  they  must  settle  the  loss  as  a 
total  loss. 

The  topics  in  relation  to  this  subject  which  we  will  consider 
are:  —  1.  The  necessity  of  abandonment.  2.  The  right  of  abandon- 
ment. 3.  The  exercise  of  this  right.  4.  The  acceptance  of  the 
abandonment.  5.  The  effect  of  the  abandonment,  or  of  the  absence 
of  abandonment. 

1.  Of  the  Necessity  of  Abandonment. — It  is  said,  that  if  a  ship 
be  completely  wrecked,  and  reduced  to  "  a  mere  congeries  of  planks 
and  iron,"  or  if  she  has  not  been  heard  from  for  a  sufficiently  long 
time,  there  need  be  no  abandonment,  and  the  insured  may  claim  as 
for  a  total  loss,  without  one.  In  either  case,  or  any  other  case,  if 
the  insurers  pay  a  total  loss,  they  are  entitled  to  whatever  shall 
come  to  hand  of  the  property  insured.  And  it  is  usual,  and  we 
think  more  proper,  to  abandon  in  both  of  these  cases. 

3.  Of  the  Right  of  Abandonment  —  The  insured  cannot  convert 
every  partial  loss,  however  small,  into  a  total  loss,  by  abandonment, 
transferring  the  damaged  property  to  the  insurers.  But  by  a  rule 
which  is  nearly  universal  in  this  country,  and  not  unknown  abroad, 
if  the  damage  by  a  peril  insured  against  exceed  one-half  of  the 
value  of  the  property  insured,  —  whether  ship,  goods,  or  freight,  — 
he  may  abandon  the  property  to  the  insurers,  and  claim  as  for  a  total 
loss.  But  if  the  vessel  actually  reaches  her  destined  port,  she  can- 
not be  abandoned,  although  the  repairs  would  cost  more  than  half 
of  her  value. 

When  we  speak  in  another  section  of  partial  loss,  it  will  be  seen 


TOTAL  LOSS  AND  ABANDOimENT.  391 

p 

that,  by  the  established  *  usage  of  this  country,  an  allowance  of 
"  one-third,  new  for  old,"  is  always  made.  This  means,  that  if  a 
new  thing  were  given  for  an  old  one  because  the  old  one  had  been 
injured,  the  insurer  would  be  more  than  indemnified.  The  sails, 
for  example,  might  be  so  new  that  they  had  lost  little  of  their  value  ; 
or  so  old,  that  they  were  of  no  value.  To  avoid  inquiring  into  each 
case,  usage  has  adopted,  as  a  fair  average  to  apply  to  all  cases,  that 
the  thing  injured  has  lost  one-third  of  its  value.  When  it  is  re- 
placed by  repairs,  the  insured  therefore  loses  one-third  of  the  cost 
of  repair,  and  the  insurers  pay  two-thirds. 

Now  our  policies  provide  that  there  shall  be  no  total  loss  by  aban- 
donment, unless  the  injury  exceed  fifty  per  cent  when  "  estimated  as 
for  a  partial  loss ; "  that  is,  one-third  off.  Consequently,  the  repairs 
necessary  to  restore  the  vessel  to  a  sound  condition  must  amount  to 
more  than  seventy-five  per  cent  of  her  value  when  repaired  (one- 
third  of  which,  twenty-five  per  cent,  being  cast  off,  leaves  fifty  per 
cent),  before  there  can  be  an  abandonment,  which  the  insurers  are 
bound  to  accept,  and  settle  the  loss  as  a  total  loss. 

The  valuation  in  the  policy,  if  there  be  one,  generally  determines 
the  value  on  which  this  estimate  is  to  be  made.  In  New  York  and 
in  Massachusetts  this  seems  to  be  distinctly  held  ;  but  the  courts  of 
the  United  States  and  of  some  of  our  States  incline  to  say  that, 
whether  the  policy  be  valued  or  open,  the  value  of  the  ship,  the  loss 
of  one-half  of  which  authorizes  abandonment,  is  the  actual  value 
of  the  ship  at  the  time  the  loss  occurs,  and  that  this  value  is  to  be 
proved  by  proper  evidence. 

A  loss  by  jettison,  by  salvage,  by  general  average  contribution,  by 
wages  of  sailors  paid  while  they  assisted  in  making  the  repairs, 
should  be  included  in  the  fifty  per  cent.  If  the  insured  have  lost  a 
part  of  his  goods  by  jettison,  and  have  a  claim  for  contribution 
which  is  not  yet  paid,  the  whole  of  his  loss  is  to  be  included  to  make 
up  the  fifty  per  cent,  and  the  insurers  take  the  claim  to  contribution 
by  abandonment.  Thus,  if  his  loss  be  by  jettison  of  eight-tenths  of 
his  goods,  it  is  80  per  cent,  and  if  he  has  a  claim  for  contribution  in 
general  average  for  35  per  cent,  this  does  not  reduce  his  loss  to  45 
per  cent,  so  that  he  cannot  abandon  ;  but  he  may  call  his  loss  80  per 
cent,  and  abandon,  and  by  the  abandonment  transfer  to  the  insurers 


392  MAKESTE  INSUBANCE. 

his  claim  for  35  per  cent.  The  expense  of  repairs  is  to  be  taken  at 
the  place  where  actually  made,  or  where  they  must  have  been  made, 
if  made  at  all. 

If  a  sale  be  lawfully  made  by  the  master,  under  the  authority 
from  necessity  which  we  have  considered  in  the  chapter  on  the  Law 
of  Shipping,  this  is  a  total  loss  and  the  insured  must  account  for  the 
proceeds. 

3.  Of  the  Exercise  of  the  Right  of  Abandonment,  —  As  an  aban- 
donment has  the  effect  of  an  absolute  transfer  of  the  property  to 
the  insurers,  and  is  intended  for  this  purpose,  it  is  obvious  that  it 
cannot  be  made  by  one  who  is  not  possessed  of  such  title  to  the 
property,  or  such  interest  therein,  as  would  enable  him  to  make  a 
valid  transfer. 

There  is  no  especial  form  or  method  of  abandonment.  But  the 
proper  and  safe  way  is  to  do  it  in  writing,  and  to  use  the  word 
"  abandon,"  or  "  abandonment,"  although  other  words  of  entirely 
equivalent  meaning  might  suffice.  It  must  be  distinct  and  un- 
equivocal, and  state,  at  least  in  a  general  way,  the  grounds  of  the 
abandonment. 

The  following  would  be  a  good  and  sufficient  form  :  — 

(101.) 

Abandonment. 

NEW  YORK,  Jan.  9,  1869,  10  o'clock,  A.M. 

I  have  this  day  learned  that  my  (or  the)  ship  (or  whatever  the  vessel  is),  insured 
by  you  (or  of  which,  you  have  insured  the  cargo  or  freight  or  profits,  as  the  case  may 
be),  has  been  wrecked  on  her  voyage  from  to  (or  has 

met  with  such  or  such  a  disaster,  describing  it  generally),  and  that  she  now  lies  at 
(or  that  said  cargo  or  what  remains  of  it  is  now  at  ). 

And  I  do  now  and  hereby  abandon  to  you  the  ship,  with  her  cargo  and  freight  (or 
whichever  of  these  interests  was  the  subject  of  insurance),  and  shall  claim  payment 
of  you  as  for  a  total  loss. 

To  the  Insurance  Company. 

(Signature.) 

If  the  abandonment  be  deficient  in  form,  the  insurers  will  waive 
any  objection  of  this  kind  if  they  call  for  further  proof,  and  other- 
wise act  as  if  the  abandonment  were  altogether  sufficient. 


TOTAL  LOSS  AND  ABANDONMEITr.  393 

The  insured  may  abandon  at  any  time  when  the  ship,  by  a  peril 
insured,  is  taken  for  an  uncertain  period  from  the  master's  control, 
and  the  voyage  is  broken  up  and  cannot  be  renewed,  unless  at  a 
cost  which  of  itself  gives  this  right. 

The  existence  of  the  right  depends  upon  the  actual  state  of  facts 
at  the  time,  and  not  upon  the  supposed  facts.  Nothing,  however, 
gives  the  right  of  instant  abandonment,  without  a  faithful  endeavor 
of  the  master  to  find,  if  he  can,  and  use,  if  he  can,  some  means  of 
deliverance  and  safety.  But  if,  when  delivered  and  restored  to  the 
master  or  owner,  her  damage  amounts  to  more  than  half  of  her 
value,  estimated  as  above  stated,  "  as  a  partial  loss,"  she  may  then 
be  abandoned.  If  the  precise  voyage  insured  be  broken  up  by  a 
peril  insured  against,  this  justifies  an  abandonment,  although  the 
vessel  might  be  put  in  condition  to  pursue  a  different  voyage  or 
render  a  different  service. 

As  the  insurers,  who  take  the  salvage  (or  saved)  property  by 
abandonment,  have  a  right  to  every  possible  opportunity  to  make 
the  most  of  it,  it  follows  as  an  invariable  and  universal  rule,  that 
the  insured  must  make  an  abandonment  immediately  after  he 
receives  the  intelligence  which  justifies  it ;  and  if  he  does  not,  he 
will  be  regarded  as  having  elected  not  to  abandon,  and  no  subse- 
quent abandonment  will  have  any  effect. 

The  abandonment  may  be  made  on  information  of  any  kind,  if  it 
be  entitled  to  weight  and  credence.  So  even  a  general  rumor, 
without  specific  intelligence  to  the  insured, ^will  authorize  an  aban- 
donment, if  the  rumor  seems  to  be  well  grounded  and  altogether 
credible. 

4.  Of  the  Acceptance  of  the  Abandonment.  —  As  there  is  no 
especial  form  or  method  of  making  an  abandonment,  so  there  is  no 
regular  and  established  form  of  accepting  an  abandonment.  Indeed, 
an  acceptance,  merely  as  such,  or  in  so  many  words,  is  seldom  made. 
And  as  the  insurer's  accepting  is  not  necessary  to  give  full  effect 
to  an  abandonment  which  has  been  made  on  proper  grounds,  and 
in  the  right  way  and  time,  it  is  seldom  asked  for. 

The  acceptance  of  the  abandonment  may  be  inferred  from  words, 
or  acts.  The  question  has  arisen  whether  it  could  be  inferred  from 


394  MAKIKE  INSURANCE. 

mere  silence ;  and,  in  general,  it  cannot.  "  An  insurer  is  not 
bound,"  says  Mr.  Justice  Story,  "to  signify  his  acceptance.  If  he 
says  nothing,  and  does  nothing,  the  proper  conclusion  is,  that  he 
does  not  mean  to  accept  it." 

The  rule  may  be  stated  thus.  If  the  insurer,  with  a  sufficient 
knowledge  of  the  facts,  says  or  does  that  which  induces  an  honest 
insured  to  believe  that  he  has  accepted  the  abandonment,  and  will 
pay  the  loss,  and  to  act  on  that  belief,  it  is  an  acceptance,  and  is  so 
far  binding  on  the  insurer.  But  if  he  neither  says  nor  does  what 
ought  to  produce  this  belief,  then  he  is  at  liberty  to  say  and  prove 
if  he  can  that  the  insured  had  no  right  to  make  an  abandonment, 
and  that  the  claim  is  only  one  for  a  partial  loss. 

5.  Of  the  Effect  of  Abandonment. —  We  regard  it  is  an  ancient, 
reasonable,  and  well-established  rule,  that,  if  insurers  pay  as  for  a 
total  loss,  this  payment  entitles  them  to  full  possession  of  all  that 
remains  of  the  property  insured,  and  also  of  all  rights,  claims,  or 
interests  which  the  insured  has  in  or  to  or  in  respect  of  the  prop- 
erty lost,  and  which,  if  he  valued  or  enforced  them  himself,  would, 
if  added  to  the  amount  paid  by  the  insurers,  give  him  a  double 
.  indemnity.  Hence,  if  the  insured  has  lost  his  goods  by  jettison, 
and  has  a  claim  for  a  general  average  contribution,  and  the  insurers 
pay  him  for  all  his  goods,  they  stand  in  his  place,  and  acquire  that 
claim  for  contribution  which  the  loss  of  the  goods  gave  him.  And 
we  should,  very  generally  at  least,  extend  this  rule  to  the  claim 
which  a  mortgagee  has  on  the  mortgage  for  his  debt.  That  is,  if 
the  insurers  pay  for  the  loss  of  the  property  which  secures  the  debt, 
they  acquire,  to  the  extent  of  their  payment,  the  mortgagee's  claim 
against  the  debtor. 

By  the  abandonment,  both  the  owner  and  the  master  become,  to 
some  extent,  the  trustees  and  agents  of  the  insurers,  in  respect  to 
the  property  abandoned ;  and  are  bound  to  act,  in  relation  to  it, 
with  care  and  honesty.  Still,  if  the  property,  after  abandonment, 
or  after  a  loss  for  which  there  is  to  be  an  abandonment,  be  further 
lost  or  wasted,  by  the  bad  faith  or  neglect  of  the  master,  or  of  the 
consignee  of  the  owner,  while  they  continue  to  act  as  such,  this  loss 
must  be  made  up  by  the  owner,  because,  although  they  are,  in  a 


GENERAL  AVERAGE.  395 

certain  sense,  agents  of  the  insured,  they  are  then  agents  of  the 
owner,  and  he  is  responsible  for  them  to  the  insured. 

Goods  are  totally  lost  if  destroyed,  or  if  so  injured  as  to  have 
little  or  no  value  for  the  purpose  for  which  they  are  intended  ;  or 
if  the  voyage  upon  which  the  insurance  on  the  goods  was  effected 
is  entirely  broken  up.  But  a  mere  delay  gives  no  right  of  abandon- 
ment. And,  in  addition  to  all  this,  the  rule  which  permits  aban- 
donment if  more  than  fifty  per  cent  be  lost,  of  which  we  have 
already  spoken,  is  applicable  to  goods,  in  this  country;  subject, 
however,  to  the  important  qualification,  that  it  does  not  apply  if 
any  substantial  portion  of  the  goods  arrive  at  their  destination  un- 
injured ;  or  if  the  goods  are  insured  "  free  from  average."  And 
the  rule  of  abandonment,  salvage,  and  transfer  to  the  insurers,  is 
the  same  in  relation  to  goods  as  to  the  ship. 

If  there  be  many  several  shipments  all  insured,  there  may  be  a 
total  loss  of  one,  a  partial  loss  of  another,  and  no  loss  of  a  third. 


SECTION   XXV. 

GENERAL  AVERAGE. 

THIS  subject  belongs  primarily  to  the  law  of  shipping,  and  is- 
treated  of  in  the  chapter  on  the  Law  of  Shipping.  It  comes  within 
the  scope  of  the  law  of  insurance  only  when  any  of  the  property 
which  is  lost  or  saved  is  insured. 

If  an  owner  of  property  is  insured,  and  other  property  is  sacri- 
ficed to  save  the  insured  property  from  a  peril  common  to  it  and  to 
the  sacrificed  property,  the  insured  property  must  pay  such  indem- 
nity to  the  owner  of  the  sacrificed  property  as  will  make  them 
suffer  alike.  And  the  amount  thus  paid  or  contributed  by  the 
insured  property  is  a  loss  by  a  sea-peril,  for  which  the  insurers  are 
liable. 

On  the  one  hand,  the  insurers  of  the  sacrificed  property  are  under 
an  obligation  to  pay  for  the  loss  thus  made  or  incurred  voluntarily, 
because  it  was  not  only  the  right,  but  the  duty,  of  the  master  and 
crew  to  destroy  a  part  rather  than  let  the  whole  perish.  It  was 


27 


396  MARINE  INSURANCE. 

therefore  a  loss  by  a  peril  of  the  sea,  although  purposely  caused  for 
the  benefit  of  others  ;  and  the  insurers  must  pay  for  it. 

On  the  other  hand,  the  owners  of  the  property  sacrificed  acquire 
by  its  sacrifice  a  claim  for  contribution  and  indemnity ;  and  if  the 
insurers  pay  them  for  their  loss,  they  acquire  their  claim  for  contri- 
bution. And  this  they  take  advantage  of,  in  some  cases,  by  deduct- 
ing it  from  the  amount  they  pay,  and  in  other  cases  by  first  paying 
all  the  loss,  and  then  collecting  all  the  contribution  for  their  own 
benefit.  We  have  already  seen  that  the  insurers  cannot  deduct  the 
contribution  for  the  purpose  of  bringing  the  loss  below  fifty  per 
cent,  and  thereby  preventing  an  abandonment. 


SECTION   XXVI. 
PARTTAT.  LOSS. 

A  PARTIAL  loss  is  simply  a  loss  of  a  part,  and  not  of  the  whole. 
The  principal  questions  relating  to  it  arise  out  of  the  rule  of  one- 
third  off,  new  for  old,  which  has  been  already  spoken  of.  "We  re- 
peat the  rule,  with  the  reason  of  it.  A  ship  sails  to-day  with  new 
copper.  Another  sails  with  her  copper  nearly  worn  out.  Both  meet 
with  peril  which  requires  new  coppering.  The  first  is  new  coppered, 
and  the  insurers  pay  for  it,  and  the  insured  gains  nothing,  because 
the  copper  on  her  was  worth  as  much  as  it  is  now.  The  second  is  also 
coppered,  and  the  insurers  pay  for  it.  But  this  ship  gains  nearly 
the  whole  value  of  the  copper  put  on,  because  the  old  copper  was 
worth  very  little.  Now  the  whole  purpose  and  principle  of  the  law 
of  insurance  is  to  indemnify  the  insured,  or  make  his  loss  good,  and 
no  more.  Formerly  they  tried  to  do  it  by  finding  out  in  each  case 
how  much  the  old  materials  had  lost  of  their  value.  But  this  was 
found  so  difficult,  that  it  was  agreed  upon  by  merchants  and  in- 
surers to  average  all  the  cases,  and  consider  that  all  old  materials 
had  lost  one-third  of  their  value.  And  the  rule  is  found  tc  work 
well  in  practice. 

The  first  effect  of  this  rule  is,  that  the  thing  or  the  part  lost  or  in- 
jured, whether  it  be  new  or  old,  worn  out  or  not  worn  at  all,  must 


PAETIAL  LOSS.  397 

be  replaced  or  repaired  in  adaptation  and  conformity  with  the  ves- 
sel, in  the  same  way  in  which  it  would  be  if  she  were  properly  re- 
paired at  the  owner's  port,  by  his  orders. 

This  third  part  is  generally  deducted  from  dockage,  moving  the 
ship,  and  similar  expenses,  provided  they  are  incidental  to  the  main 
purpose  of  repair. 

The  value  of  the  old  materials  should  be  deducted  from  the  ex- 
pense of  repair,  before  the  third  "  new  for  old  "  is  taken  off.  If  a 
sea-peril  makes  it  necessary  to  recopper  a  vessel,  and  the  cost  will 
be  $9,000,  and  her  old  copper  is  worth  $3,000,  we  should  say  that 
this  should  be  deducted,  leaving  $6,000,  for  two-thirds  of  which  only 
($4,000),  one-third  being  off,  new  for  old,  the  insurers  would  be 
liable.  The  other  way  would  be,  to  say  the  cost  of  repair  is  $9,000 
of  which  the  insurers  would  pay  two-thirds  ("  one-third  off"),  or 
$6,000;  and  then  the  insurers  would  be  entitled  to  the  $3,000 
which  her  old  copper  brings.  Then  the  loss  of  the  insurers  would 
be  only  $6,000  less  $3,000,  or  $3,000,  instead  of  $4,000,  which  the 
insurers  would  lose  on  the  first  way.  Insurers  have  tried  to  make 
the  second  way  the  law;  but  the  first  way  is  now  pretty  well 
established. 

If  an  owner  effects  insurance  on  a  part  only  of  the  value  of  the 
property  insured,  —  as  if  for  $5,000  on  a  ship  valued  at  $10,000,  — 
he  is  insured  for  half,  and  is  his  own  insurer  for  the  other  half,  and 
he  recovers  in  the  same  proportion  from  the  insurers  in  case  of  a 
partial  loss.  Thus,  if  there  be  a  partial  loss  of  sails  and  rigging,  or 
of  repairs,  amounting,  after  one-third  is  deducted,  to  $2,000,  one- 
half  of  this  is  the  loss  of  the  insurers,  and  they  pay  it  to  him,  and 
one-half  is  his  own  loss.  • 

The  insurer  takes  no  part  of  the  risk  of  the  market,  and  his  lia- 
bility is  the  same  whether  that  rises  or  falls,  although  this  may 
make  a  great  difference  as  to  the  amount  lost  by  the  insured.  What 
goods  have  lost  from  their  original  invoice  value  is  the  amount 
which  the  insurer  pays.  Thus,  if  he  insures  $10,000  on  goods  of 
which  that  is  the  original  value,  and  they  are  so  far  damaged  by  a 
sea-peril,  that  at  the  port  of  discharge  they  bring,  or  are  worth,  only 
half  of  what  they  would  have  brought  if  they  had  not  been  dam- 
aged, the  insurers  are  liable  for  $5,000,  or  that  half,  although  the 


398  FIRE  INSURANCE. 

goods  thus  damaged  may  bring  in  the  market  of  arrival  the  whole 
of  their  invoice  cost  or  more.  And  if  they  bring  but  a  quarter  of 
it,  the  insurers  pay  no  more  than  one-half,  because  the  rest  of  the 
loss  is  caused  by  the  falling  market. 

If  the  goods  have  sustained  damage  or  loss  by  leakage,  or  by 
breakage,  or  by  natural  decay,  or  from  inherent  defect  in  quality, 
—  that  is,  not  by  a  sea-peril,  —  before  the  partial  loss  occurs,  a  pro- 
portional deduction  should  be  made  from  the  partial  loss,  as  the 
insurers  are  liable  only  for  the  injury  resulting  from  that  loss,  and 
not  for  any  part  of  that  which  already  existed  when  the  loss  took 
place,  or  which  has  occurred  since  from  causes  against  which  they 
did  not  insure. 


CHAPTER  XXVII. 

FIRE    nV8TJRA.IVCE. 

SECTION  I. 
THE    USUA1L    SUBJECT    AND    FORM    OF    THIS    INSURANCE. 

THIS  kind  of  insurance  is  sometimes  made  to  indemnify  against 
the  loss  by  fire  of  ships  in  port ;  more  often  of  warehouses,  and  mer- 
cantile property  stored  in  them ;  or  of  personal  property  in  stores  or 
factories,  in  dwelling-houses-  or  barns,  as  merchandise,  furniture, 
books,  and  plate,  or  pictures,  or  live  stock.  But  by  far  the  most 
common  application  of  this  mode  of  insurance  is  to  dwelling-houses. 

Like  marine  insurance,  it  may  be  effected  by  any  individual  who 
is  capable  of  making  a  legal  contract.  In  fact,  however,  it  is 
always,  or  nearly  always,  in  this  country,  and  we  suppose  elsewhere, 
made  by  companies. 

There  are  stock  companies,  in  which  certain  persons  own  the  capi- 
tal and  take  all  the  profits  by  way  of  dividends ;  and  mutual  com- 


USUAL  SUBJECT  AND  FORM  OF  THIS  INSURANCE.  399 

panies,  in  which  every  one  who  is  insured  becomes  thereby  a  member, 
and  the  net  profits,  or  a  certain  proportion  of  them,  are  divided 
among  all  the  members  in  such  manner  as  the  charter  or  by-laws  of 
the  company  may  direct.  Sometimes  both  kinds  are  united,  in 
which  case  there  is  a  capital  stock  provided,  as  a  permanent  guar- 
anty fund,  over  and  above  the  premiums  received,  and  a  certain 
part  or  proportion  of  the  net  profits  is  paid  by  way  of  dividend  upon 
this  fund,  and  the  residue  divided  among  the  insured. 

Of  late  years  the  number  of  mutual  fire-insurance  companies 
has  greatly  increased  in  this  country,  and  much  the  largest 
amount  of  insurance  against  fire  is  effected  by  them.  The  principal 
reason  for  this  is,  undoubtedly,  their  greater  cheapness ;  the  pre- 
miums required  by  them  being,  in  general,  much  less  than  in 
the  stock  offices.  For  example,  if  the  insurance  is  effected  for  seven 
years,  which  is  a  common  period,  an  amount  or  percentage  is 
charged,  about  the  same  as  that  charged  by  the  stock  companies,  or 
a  little  more.  Only  a  small  part  of  this  is  taken  in  cash ;  for  the 
rest  a  premium  note  or  bond  is  given,  promising  to  pay  whatever 
part  of  the  amount  may  be  needed  for  losses  which  shall  occur  dur- 
ing the  period  for  which  the  note  is  given.  More  than  this,  there- 
fore, the  insured  cannot  be  bound  to  pay,  and  it  frequently  happens, 
that  no  assessment  whatever  is  demanded ;  and  sometimes,  where 
the  company  is  well  established  and  does  a  large  business  upon  sound 
principles,  a  part  of  the  money  paid  by  him  is  refunded  when  the 
insurance  expires,  or  credited  to  him  on  the  renewal  of  the  policy, 
if  such  be  his  wish. 

The  disadvantage  of  these  mutual  companies  is,  that  the  premi- 
ums paid  and  premium  notes  constitute  the  whole  capital  or  fund 
out  of  which  losses  are  to  be  paid  for.  To  make  this  more  secure, 
it  is  provided  by  the  charter  of  some  companies,  that  they  shall  have 
a  lien  on  the  land  itself  on  which  any  insured  building  stands,  to 
the  amount  of  the  premium.  But  while  this  adds  very  much  to  the 
trustworthiness  of  the  premium  notes,  and  so  to  the  availability  of 
the  capital,  it  is,  with  some  persons,  an  objection,  that  their  land  is- 
thus  subjected  to  a  lien  or  incumbrance. 

There  is  another  point  of  difference  which  recommends  the  stock 
company  rather  than  the  mutual  company.  It  is  that  the  stock 


400  FIRE  I^SUKANCE. 

company  will  generally  insure  more  nearly  the  full  value  of  the  prop- 
erty insured ;  while  the  mutual  companies  are  generally  restrained 
by  their  charters  from  insuring  more  than  a  certain  proportion, 
namely,  from  one-half  to  three-fourths,  of  the  assessed  value  of  the 
property.  It  would  follow,  therefore,  that  one  insured  by  a  mutual 
company  cannot  be  fully  indemnified  against  loss  by  fire  ;  and  may 
not  be  quite  so  certain  of  getting  the  indemnity  he  bargains  for  as 
if  he  were  insured  by  a  stock  company. 

The  method  and  operation  of  fire  insurance  have  become  quite 
uniform  throughout  this  country ;  and  any  company  may  appeal  to 
the  usage  of  other  companies  to  answer  questions  which  have  arisen 
under  its  own  policy;  only,  however,  within  certain  rules,  and 
under  some  well-defined  restrictions. 

In  the  first  place,  usage  may  be  resorted  to  for  the  purpose  of  ex- 
plaining that  which  needs  explanation,  but  never  to  contradict  that 
which  is  clearly  expressed  in  the  contract.  And  no  usage  can  be 
admitted  even  to  explain  a  contract,  unless  the  usage  be  so  well 
established,  and  so  well  known,  that  it  may  reasonably  be  supposed 
that  the  parties  entered  into  the  contract  with  reference  to  it.  And 
not  only  the  terms  of  the  contract  must  be  duly  regarded,  but  those 
of  the  charter  or  act  of  incorporation. 

In  regard  to  the  execution  of  a  fire  policy,  and  what  is  necessary 
to  constitute  such  execution,  we  say  that  delivery  is  not  strictly 
necessary,  and  a  signed  memorandum  may  be  sufficient,  or,  indeed, 
an  oral  bargain  only,  and  that  this  insurance  may  be  effected  by 
correspondence,  and  that  the  contract  is  completed  when  there  is  a 
proposition  and  assent,  as  we  have  already  said  in  reference  to 
marine  insurance. 

It  has  been  held  in  an  action  on  a  fire  policy,  as  doubtless  it  would 
be  on  a  marine  policy,  that  a  memorandum  made  on  the  application 
book  of  the  company  by  the  president,  and  signed  by  him,  was  not 
binding,  where  the  party  to  be  insured  wished  the  policy  to  be  de- 
layed until  a  different  adjustment  of  the  terms  could  be  settled,  and 
after  some  delay  was  notified  by  the  company  to  call  and  settle  the 
business,  or  the  company  would  not  be  bound,  and  he  did  not  call ; 
because  there  was  here  no  consummated  agreement.  So,  too,  a 
subsequent  adoption  or  ratification  of  a  policy  made  by  an  agent  is 


THE   CONSTRUCTION  OF  POLICIES  AGAINST  FIRE.  401 

equivalent,  either  in  a  fire  or  marine  policy,  to  the  making  origi- 
nally of  the  contract. 


SECTION  n. 

THE    CONSTRUCTION    OF    POLICIES    AGAINST    FIRE. 

IT  is  sufficient  if  the  words  of  the  policy  describe  the  persons,  the 
location,  and  the  property,  with  so  much  distinctness  that  the  court 
and  jury  have  no  difficulty  in  determining  their  identity  with  a  cer- 
tainty which  prevents  any  real  and  substantial  doubt. 

In  the  construction  of  this  as  of  other  contracts,  the  intention  of 
the  parties  is  a  very  important  and  influential  guide ;  but  it  must 
be  the  intention  as  expressed;  for  otherwise,  a  contract  which  was 
not  made  would  be  substituted  for  that  which  was  made  ;  and  evi- 
dence from  without  the  contract  would  be  permitted  to  vary  and  to 
contradict  it.  Thus,  where  stock  in  trade,  household  furniture, 
linen,  wearing-apparel,  and  plate  were  insured  in  a  policy,  the  court 
held  that  the  term  "  linen  "  must  be  confined  to  "  household  linen," 
and  would  not  include  linen  drapery  goods  purchased  on  speculation. 
In  a  case  where  the  policy  required  that  the  houses,  buildings,  or 
other  places  where  goods  are  deposited  and  kept,  shall  be  truly  and 
accurately  described,  and  the  place  was  described  as  the  dwelling- 
house  of  the  insured,  whereas  he  occupied  only  one  room  in  it,  as  a 
lodger,  this  description  was  held  sufficient. 

It  was  held  in  another  case,  that  the  insurance  by  an  inn-keeper 
against  fire  of  his  "  interest  in  the  inn  and  offices,"  does  not  cover 
the  loos  of  profits  during  the  repair  of  the  damaged  premises.  And 
in  another,  the  words  "  stock  in  trade,"  when  used  in  a  policy  of  in- 
surance in  reference  to  the  business  of  a  mechanic,  as  a  baker,  were 
held  to  include  not  only  the  materials  used  by  him,  but  the  tools, 
fixtures,  and  implements  necessary  for  the  carrying-on  of  his  busi- 
ness ;  and  the  words  in  question  were  held  to  have  a  broader  appli- 
cation to  the  business  of  mechanics  than  to  that  of  merchants. 

A  policy  upon  wearing-apparel,  household  furniture,  and  the 
stock  of  a  grocery,  covers  linen  sheets  and  shirts  actually  laid  in  for 
family  use,  and  such  as  were  laid  in  for  sale  or  traffic  in  the  usual 


402  FIBE  INSURANCE. 

way,  in  the  store  ;  but  not  such  as,  being  smuggled,  were  concealed 
and  intended  for  secret  sale. 

There  is  no  material  difference  in  respect  to  mistake,  or  the  cor- 
rection of  it,  betwen  fire-policies  and  marine-policies  ;  and  the  law 
on  this  subject  in  relation  to  the  latter  has  already  been  stated. 
And  the  same  remark  may  be  extended  to  the  rule  respecting  the 
admission,  as  a  part  of  the  contract,  of  a  memorandum  on  the  back 
of  the  policy,  or  attached  to  it  by  a  wafer,  and  neither  referred  to  in 
the  policy  itself,  nor  signed  by  the  insurer. 

It  is  a  general  rule  with  our  mutual  insurance  companies,  that 
every  one  who  is  insured  becomes  a  member  of  the  company. 

And  it  follows,  necessarily,  that  every  insured  party  is  bound  by 
all  the  laws  and  rules  of  the  company,  as  by  laws  and  rules  of  his 
own  making. 

The  mutual  fire-insurance  companies,  by  a  law  or  rule  which  is 
perhaps  universal,  require  that  an  application  shall  be  made  in  writ- 
ing ;  and  this  written  application  is  after  a  peculiar  form,  prescribed 
by  the  rules.  It  always  contains  certain  definite  statements,  which 
relate  to  those  matters  which  affect  the  risk  of  fire  importantly.  In 
each  form  of  application  sundry  questions  are  put,  which  are  quite 
numerous  and  specific,  and  are  those  which  experience  has  suggested 
as  best  calculated  to  elicit  all  the  information  needed  by  the  insur- 
ers, for  the  purpose  of  estimating  accurately  the  value  of  the  risk 
they  undertake.  Specific  answers  must  be  given  to  all  these  ques- 
tions. And  this  application,  with  all  these  statements,  questions, 
and  answers,  is  expressly  referred  to  in  the  policy,  and  made  a  part 
of  the  contract. 

It  is  common  to  state  in  the  printed  part  of  the  formal  applica- 
tion, that  it  is  made  on  such  and  such  conditions ;  and  these  usually 
follow  those  statements  which  are  deemed  the  most  material  in 
estimating  the  risk.  These  would  be  considered  as  express  condi- 
tions, and  therefore  the  substantial  truth  of  all  of  them  is  a  condi- 
tion precedent  to  any  right  of  indemnity  in  the  insured  party.  By 
the  legal  phrase  condition  precedent,  is  meant  a  condition  which 
must  be  fully  complied  with  before  the  contract  can  take  effect. 
Hence,  if  any  of  these  statements  are  false,  the  policy  will  be  void. 

Sometimes  there  is  no  distinct  application  in  writing,  but  the 


THE  CONSTETJCTION  OP  POLICIES  AGAINST  FERE.  403 

policy  itself  states  the  facts  relied  upon.  For  this  purpose  it  con- 
tains  many  blanks,  which  are  filled  up  according  to  the  circum- 
stances of  each  case.  It  may  happen  that  what  is  written  in  these 
places  may  be  inconsistent  with  what  is  printed ;  and  then  it  is  a 
general  rule  that  what  is  written  prevails,  as  that  is  more  immedi- 
ately and  specifically  the  act  of  the  parties,  and  may  be  supposed  to 
express  their  precise  purpose  better  than  the  printed  phrases  which 
wera  prepared  without  especial  reference  to  any  particular  case. 
But  this  rule  would  not  be  applied  where  it  would  obviously  operate 
injustice. 

Policies  of  fire  insurance,  especially  of  mutual  companies,  often 
contain  a  scale  of  premiums,  as  calculated  upon  different  classes  of 
buildings,  of  stocks  in  trade,  or  other  property,  in  conformity  with 
what  is  thought  to  be  the  greater  or  less  risk  of  fire  in  each  case. 
This  is  a  matter  of  special  importance ;  and  if  a  statement  were 
made  by  an  applicant  which  put  his  building  or  property  into  a  class 
of  which  the  risk  and  premium  were  less  than  for  the  class  to  which 
the  building  or  property  actually  belonged,  and  in  that  way  an 
insurance  was  effected  at  such  less  premium,  the  policy  would  un- 
doubtedly be  void,  even  if  the  false  statement  were  made  innocently. 

"When  certain  trades  or  occupations,  or  certain  uses  of  buildings, 
or  kinds  and  classes  of  property,  are  enumerated  as  "  hazardous," 
or  otherwise  specified  as  peculiarly  exposed  to  risk,  the  rule,  The 
expression  of  one  thing  excludes  what  is  not  expressed,  is  applied,  and 
sometimes  with  severity.  This  is  better  illustrated  by  marine  insur- 
ance. Thus,  in  a  case  in  New  York,  precisely  in  point,  dried  fish 
were  enumerated  in  the  memorandum  clause  as  free  from  average, 
and  "  all  other  articles  perishable  in  their  own  nature."  It  was 
held  that  the  naming  of  one  description  of  fish  implied  that  other 
fish  were  not  intended ;  and  that  the  subsequent  words,  "  all  other 
articles  perishable  in  their  own  nature,"  were  not  applicable,  and 
did  not  repel  this  implication.  The  same  rule  would  be  applied,  for 
the  same  reason,  and  in  the  same  way,  to  cases  of  fire  insurance. 

If  the  printed  conditions  represent  one  class  of  buildings,  or 
goods,  or  property,  as  more  hazardous  than  another,  it  would  not 
be  competent  for  the  insured,  whose  property  was  of  that  kind,  to 
prove  by  other  testimony  that  it  was  not  more  hazardous  in  fact. 


404  FIEB  INSURANCE. 

Moreover,  a  description  of  the  property  insured,  as  it  is  a  description 
for  a  contract  on  time,  is  held  to  amount  to  an  agreement  that  the 
property  shall  continue  within  the  class  where  it  is  put,  or  at  least  shall 
not  enter  into  another  that  is  declared  to  be  more  hazardous,  during 
the  operation  of  the  policy.  There  must,  however,  be  a  rational, 
and  perhaps  a  liberal,  construction  of  this  rule.  Thus,  it  does  not 
apply  where  a  single  article,  or  one  or  two,  are  kept  in  a  store  as  a 
part  of  the  stock  of  goods,  although  that  article,  as  cotton  in  bales, 
is  among  those  enumerated  as  hazardous.  So  if  the  "  storing  of 
spirituous  liquors  "  is  prohibited,  the  keeping  of  wine  or  brandy  in 
a  private  house  for  consumption,  or  even  for  sale  by  retail  to 
boarders,  would  not  discharge  the  insurers. 

In  New  York  it  was  held  that  where  oils  and  turpentine,  which 
were  classed  among  hazardous  or  extra-hazardous  articles,  were 
introduced  for  the  purpose  of  repairing  and  painting  the  dwelling 
insured,  and  the  dwelling  was  burned  while  being  so  repaired,  the 
insurers  were  liable.  But  if  the  building  is  generally  appropriated 
to  a  more  hazardous  occupation  than  the  proposals  or  the  policy 
indicate,  or  if  the  jury  find  that  the  introduction  of  these  goods 
materially  increased  the  actual  risk,  evidence  would  be  received  as 
to  the  intention  of  the  parties  to  the  contract.  And  the  true 
meaning  of  the  contract  and  the  intent  of  the  parties  would  bo 
considered.  Thus,  where  the  "  storing "  of  certain  goods  was 
prohibited,  as  "  hazardous,"  it  was  held  that  the  having  a  pipe  or 
two  of  such  articles  in  the  cellar,  from  which  smaller  vessels  in  the 
store  were  replenished,  did  not  come  within  the  meaning  of  the 
word  "  storing  "  in  the  policy,  any  more  than  would  the  keeping  pf 
such  articles  for  home  consumption  in  a  dwelling-house  insured  by 
a  similar  policy.  So  a  description  of  a  house  as  "  at  present  occu- 
pied as  a  dwelling-house,  but  to  be  hereafter  occupied  as  a  tavern, 
and  privileged  as  such,"  is  only  permission  that  it  should  be  a 
tavern,  and  creates  no  obligation  to  occupy  and  keep  it  as  a  tavern 
on  the  part  of  the  insured.  But  if  the  language  is,  "  to  be  occupied 
as  so  or  so,  but  not "  in  some  other  certain  way,  this  restriction  is  a 
part  of  the  bargain ;  and,  if  the  building  is  occupied  in  the  way 
prohibited,  the  insurers  are  discharged. 

So  if  the  premises  are  described  as  a  "  private  residence,"  the 


THE  CONSTRUCTION  OF  POLICIES  AGAINST  FIRE.  405 

insurance  is  not  avoided  by  the  fact  that  the  occupants  moved  out  of 
the  house,  leaving  it  vacant,  and  not  the  "  residence  "  of  any  one, 
unless  the  jury  find  that  the  risk  was  thereby  materially  increased. 
But  where  the  property  was  represented  as  a  "  tavern  barn,"  and  the 
insured  permitted  its  occupation  as  a  livery-stable,  the  policy  was 
held  to  be  discharged,  although  the  keeper  of  the  livery-stable  was 
removable  at  the  pleasure  of  the  insured.  Where  a  building  in- 
sured by  a  company  was  represented,  at  the  time  of  effecting  the 
insurance,  as  connected  with  another  building  on  one  side  only,  and 
before  the  loss  happened  it  became  connected  on  two  sides,  the 
policy  was  held  not  to  be  avoided  unless  the  risk  thereby  became 
greater. 

The  general  subject  of  alterations  of  property  under  insurance 
against  fire  is  not  without  difficulty.  On  the  whole,  however,  mere 
alterations,  although  expensive  and  important,  do  not  necessarily 
and  of  themselves  avoid  the  insurance  or  discharge  the  insurers ; 
but  they  have  this  effect,  if  they  are  found  by  the  jury  to  increase 
the  risk  materially ;  or  if  they  are  specifically  prohibited  in  the 
policy. 

Still  other  questions  may  arise  where  material  alterations  are 
made,  all  of  which  are  not  easily  disposed  of.  The  following  are 
instances.  Suppose  one  gets  his  dwelling-house  insured  for  seven 
years,  truly  describing  it  as  having  a  shingled  roof.  After  two  or 
three  years  he  determines  to  take  off  the  shingles,  but  says  nothing 
to  the  insurers  about  it.  If  he  now  puts  on  slates,  or  a  metallic 
covering  which  does  not  require  soldering,  he  does  not  increase  the 
risk  ;  nor  is  the  work  of  putting  on  the  new  covering  hazardous,  and 
we  see  no  grounds  for  its  having  any  effect  on  the  policy.  But 
suppose  the  new  metallic  covering  is  secured  by  soldering.  This  is 
certainly  a  hazardous  operation.  And  if  the  building  takes  fire 
in  consequence  of  this  operation,  the  insurers  are  certainly  dis- 
charged. 

If  the  operation  is  conducted  safely  through,  and  the  work  is 
entirely  finished,  we  consider  it  clear  that  this  greater  hazard  for  a 
time  has  no  effect  whatever  on  the  policy  after  that  time,  and  after 
all  the  greater  hazard  has  expired.  But  let  us  suppose  that  while 
this  operation  is  going  forward,  and  the  house  is  thereby  certainly 


406  FIBE  INSURANCE. 

exposed  to  an  increase  of  risk,  the  house  is  set  on  fire  by  an  incen- 
diary,—  without  the  slightest  reference  to  this  alteration,  —  and 
burns  down.  It  is  not,  perhaps,  settled,  either  by  authority  or  prac- 
tice, whether  the  insurers  are  or  are  not  discharged.  I  am,  how- 
ever, of  opinion,  that  the  principles  of  insurance  would  lead  to  the 
conclusion,  that,  if  the  house  be  burned  from  a  perfectly  independ- 
ent cause,  during  an  increase  of  risk  incurred  for  good  cause  and 
in  good  faith,  the  insurers  are  not  thereby  discharged.  It  is,  how- 
ever, certain,  that  it  is  always  prudent  to  obtain  the  consent  of  the 
insurers  to  any  proposed  alteration.  If  such  consent  be  asked,  and 
refused,  we  do  not  see  that  the  insurers  stand  on  any  better  footing, 
or  the  insured  on  any  worse  one ;  and  if  the  alterations  are  made 
and  a  loss  occurs,  we  should  say  that  the  insurers  would  not,  gen- 
erally at  least,  be  discharged  because  of  their  refusal,  unless  they 
would  have  been  discharged  if  the  alteration  had  been  made  with- 
out their  knowledge.  For  if  they  have  a  right  to  object  or  refuse, 
it  could  only  be  because  the  contract  in  effect  prohibited  this  altera- 
tion ;  and  then  their  refusal  was  not  wanted  for  their  defence.  And 
if  they  have  no  right  to  refuse,  they  can  acquire  no  rights  by  the 
refusal.  • 

If  the  alteration  be  of  a  permanent  character,  and  causes  a  mate- 
rial increase  of  the  danger  of  fire,  then  it  is  a  substantial  breach  of 
contract ;  and  we  should  hold  that  the  insurers  were  discharged  as 
soon  as  the  alteration  was  made,  and  indeed  as  soon  as  the  making 
of  it,  or  preparations  for  it,  as  scaffolding  or  carpenter's  work,  mate- 
rially increased  the  risk.  And  they  are  discharged  equally,  whether 
the  fire  be  caused  by  the  alteration,  or  by  the  work  done,  or  by  some 
wholly  independent  matter. 

The  insured  may  make  reasonable  repairs  without  especial  leave, 
and  the  insurers  are  liable,  although  the  fire  take  place  while  the 
repairs  are  going  on  ;  and  even  if  it  be  caused  by  the  repairs. 

It  may  be  added,  that  our  fire-policies  now  in  use  frequently  give 
the  insured  the  right  of  keeping  the  property  in  repair.  The  fail- 
ure of  the  insured  to  repair  a  defect  in  the  building,  arising  after 
the  contract  is  made,  does  not  prevent  the  insured  from  recovering 
unless  he  was  guilty  of  gross  negligence. 


THE  INTEREST  OF  THE  INSURED.  407 

SECTION   m. 
THE    LNTEBESI   OF    THE    INSURED. 

ANY  legal  interest  is  sufficient.  And  if  it  be  equitable  in  the 
sense  that  a  court  of  equity  will  recognize  and  protect  it,  that  is 
sufficient ;  but  a  merely  moral  or  expectant  interest  is  not  enough. 
So  one  has  an  insurable  interest  in  a  house  placed  on  another's 
land  with  that  other's  consent,  but  not  if  placed  there  without 
license  or  shadow  of  title.  So,  too,  one  who  has  made  only  an  oral 
bargain  with  another  to  purchase  the  other's  house,  cannot  insure 
it ;  but  if  there  be  a  valid  contract  in  law,  or  if  by  writing  or  by 
part  performance  it  is  enforceable  in  a  court  of  equity,  the  pur- 
chaser may  insure.  So,  if  a  debtor  assign  his  property  to  pay  his 
debts,  he  has  an  insurable  interest  in  it  until  the  debts  are  paid,  or 
until  the  property  be  sold. 

A  partner  may  have  an  insurable  interest  in  a  building  purchased 
with  partnership-funds,  although  it  stands  upon  land  owned  by  the 
other  partner.  A  mortgagor  may  insure  the  whole  value  of  his 
property,  even  after  the  possession  has  passed  to  the  mortgagee,  if 
the  equity  of  redemption  be  not  wholly  gone.  So  he  may  if  his 
equity  of  redemption  is  seized  on  execution,  or  even  sold,  so  long 
as  he  may  still  redeem.  And  in  case  of  loss  he  recovers  the  whole 
value  of  the  building,  if  he  be  insured  on  it  to  that  amount. 

A  mortgagor  and  a  mortgagee  may  both  insure  the  same  property, 
and  neither  need  specify  his  interest,  but  simply  call  it  his  property. 
The  mortgagee  has  an  interest  only  equal  to  his  debt,  and  founded 
upon  it ;  and  if  the  debt  be  paid,  the  interest  ceases,  .and  the  policy 
is  discharged  ;  and  he  can  recover  no  more  than  the  amount  of  his 
debt. 

It  has  been  held,  that  if  a  mortgagor  is  bound  by  his  contract  with 
the 'mortgagee  to  keep  the  premises  insured  for  the  benefit  of  the 
mortgagee,  and  does  keep  them  insured  in  his  own  name,  the  mort- 
gagee has  an  equitable  interest  in  or  lien  upon  the  proceeds  of  the 
policy. 

One  who  holds  property  only  in  right  of  his  wife  may  insure  the 
property,  even  if  his  wife  be  only  a  joint  tenant.  And  a  tenant  foi 


408  FIRE  INSURANCE. 

years,  or  from  year  to  year,  may  insure  his  interest,  but  would 
recover  only  the  value  of  his  interest,  and  not  the  value  of  the  whole 
property. 

We  have  said  that,  generally,  any  one  having  any  legal  interest 
in  property  may  insure  it  as  his  own.  But  there  is  one  important 
exception  to  or  modification  of  this  rule.  By  the  charters  of  many 
of  our  mutual  insurance  companies,  the  company  has  a  lien,  to  the 
amount  of  the  premium  note,  on  all  property  insured.  It  is  obvious, 
therefore,  that  nonsuch  description  can  be  given,  or  no  such  language 
used,  as  would  induce  the  company  to  suppose  they  had  a  lien  when 
they  could  not  have  one,  or  would  in  any  way  deceive  them  as  to 
the  validity  or  value  of  their  lien.  In  all  such  cases,  all  incum- 
brances  must  be  stated,  and  the  title  or  interest  of  the  insured  fully 
stated  in  all 'those  particulars  in  which  it  affects  the  lien. 

A  trustee",  agent,  or  consignee  may  insure  against  fire,  as  he  may 
against  marine  loss.  Generally,  the  consignee  is  not  bound  to 
insure  against  fire,  but  may,  at  his  discretion.  He  may  insure,  ex- 
pressly, his  own  interest  in  them  for  advances,  or  the  owner's  inter- 
est. It  has  been  held  that  a  ccmsignee  may,  by  virtue  of  his  implied 
interest  and  authority,  insure,  in  his  own  name,  goods  in  his  posses- 
sion against  fire,  to  their  full  value,  and  recover  for  the  benefit  of 
the  owner.  And  if  the  interest  be  not  expressed,  the  policy  will  be 
construed  as  not  covering  the  interest  of  the  owners,  if,  upon  a  fair 
construction  of  the  words  and  facts,  it  seems  to  have  been  the  inten- 
tion of  the  parties  only  to  secure  the  consignee's  interest.  And  an 
insurance  against  fire  upon  merchandise  in  a  warehouse,  "  for 
account  of  whom  it  may  concern,"  protects  only  such  interests  as 
were  intended  to  be  insured  at  the  time  of  effecting  the  insurance. 

It  is  now  common  for  a  commission  merchant  to  cover  in  one 
policy,  in  his  own  name,  all  the  goods  of  the  various  owners  who 
have  consigned  goods  to  him.  It  has  been  held,  that  the  words 
"  goods  held  on  commission,"  in  fire-policies,  have  an  effect  equiv- 
alent to  the  words  "  for  whom  it  may  concern,"  in  marine-policies. 

A  person  having  a  lien  on  a  building  under  a  State  law  has  an 
insurable  interest  in  the  building. 

A  consignee  of  goods,  sent  to  him,  but  not  received,  may  insure 
his  own  interest  in  them.  So,  any  bailee  (which  means  any  per- 


DOUBLE  INSURANCE.  409 

son  to  whom  property  has  been  delivered  for  any  purpose)  who  has 
a  legal  interest  in  the  chattels  which  he  holds,  although  this  be/  tem- 
porary and  qualified,  may  insure  the  goods  against  fire.  Thus  a 
common  carrier  by  land,  who  has  a  lien  on  the  goods,  and  is  answer- 
able for  them  if  lost  by  fire  (unless  it  be  caused  by  the  act  of  God 
or  the  public  enemy),  may  insure  the  goods  to  their  full  value 
against  fire. 

The  insurers  must  know  whom  they  insure ;  for  they  may  have  a 
choice  of  persons,  and  it  is  important  to  them  to  know  whether  they 
are  to  depend  on  the  care  and  honesty  of  this  man  or  that  man. 
The  insured  must  so  describe  the  owner  as  not  to  deceive  them  on 
this  point,  and  so  he  must  the  kind  of  ownership.  Thus,  if  he  aver 
an  entire  interest  in  himself,  he  cannot  support  this  by  showing  a 
joint  interest  with  another ;  and  if  in  his  action  he  declare  the 
latter,  proof  of  the  former  is  not  sufficient. 

So,  too,  there  must  be  actual  authority  to  make  the  insurance. 
This  may  be  express,  or  implied,  in  some  cases,  as  it  seems  to  be 
implied  with  the  consignee,  or  the  carrier,  and  perhaps,  generally, 
with  any  one  who  has  an  actual  possession  of,  interest  in,  and  lien 
on,  the  property.  But  a  tenant  in  common  does  not  derive  from  his 
cotenancy  authority  to  insure  for  his  cotenant ;  nor  could  a  master 
of  a  ship  or  a  ship's  husband,  merely  as  such,  insure  the  owner's 
interest  against  fire. 


SECTION  IV. 

DOUBLE    INSURANCE.     • 

BY  this,  the  party  orginally  insured  becomes  again  insured.  If, 
by  a  double  insurance,  the  insured  could  protect  himself  over  and 
over  again,  he  might  recover  many  indemnities  for  one  loss.  This 
cannot  be  permitted,  not  only  because  it  is  opposed  to  the  first  prin- 
ciples of  insurance,  but  because  it  would  tempt  to  fraud,  and  make 
it  very  easy. 

In  this  country,  fire-policies  usually  contain  express  and  exact 
provisions  on  this  subject.  They  vary  somewhat ;  but,  generally, 
they  require  that  any  other  insurance  must  be  stated  by  the  insured, 


410  FIEE  INSURANCE. 

and  indorsed  on  the  policy ;  and  it  is  a  frequent  condition,  that  each 
office  shall  in  that  case  pay  only  a  ratable  proportion  of  a  loss ;  and 
it  is  often  added,  that,  if  such  pther  insurance  be  not  so  stated 
and  indorsed,  the  insured  shall  not  recover  on  the  policy.  And  it 
has  been  held  that  such  a  condition  applies  to  a  subsequent  as  well 
as  to  a  prior  insurance  ;  or  to  an  insurance  of  any  part  of  the  prop- 
erty covered  by  the  other  policy.  Nor  will  a  court  of  equity  relieve, 
if  sufficient  notice  and  indorsement  have  not  been  made.  But  it  has 
been  held  that  a  valid  notice  might  be  given  to  an  agent  of  the  com- 
pany, who  was  authorized  to  receive  applications  and  survey  prop- 
erty proposed  for  insurance. 

In  some  instances,  the  charter  of  the  company  provides  that  any 
policy  made  by  it  shall  be  avoided  by  any  double  insurance  of  which 
notice  is  not  given,  and  to  which  the  consent  of  the  company  is  not 
obtained,  and  expressed  by  their  indorsement  in  the  policy.  But 
this  would  not  apply  to  a  non-notice  by  an  insured  of  an  insurance 
effected  by  the  seller  on  the  house  which  the  insured  had  bought,  if 
this  policy  were  not  assigned  to  the  buyer. 


SECTION  V. 

WARRANTY  AND   REPRESENTATION. 

A  WARRANTY  is  a  part  of  the  contract ;  it  must  be  distinctly 
expressed,  and  written  either  in  or  on  the  policy,  or  on  a  paper 
attached  to  the  policy,,  or,  as  has  been  held,  on  a  separate  paper  dis- 
tinctly referred  to  and  described  as  a  part  of  the  policy.  Then  it 
operates  as  a  condition  precedent ;  that  is,  as  a  condition  of  the 
policy,  which  if  it  be  not  performed,  the  policy  never  takes  effect ; 
if  it  be  not  performed,  there  is  no  valid  contract ;  nor  can  the  non- 
performance  be  helped  by  evidence  that  the  thing  warranted  was 
less  material  than  was  supposed,  or,  indeed,  not  material. 

It  may  be  a  warranty  of  the  present  time,  or,  as  it  is  called, 
affirmative,  or  of  the  future,  and  then  it  is  promissory.  And  it  may 
be,  although  of  the  present  and  affirmative,  a  continuing  warranty, 
rendering  the  policy  liable  to  avoidance  by  a  non-continuance  of 


WARRANTY  AND  REPRESENTATION.  411 

the  thing  which  is  warranted  to  exist.  Whether  it  is  thus  con- 
tinuing or  not  must  evidently  be  determined  by  the  nature  of  the 
thing  warranted.  A  warranty  that  the  roof  of  a  house  is  slated,  or 
that  there  are  only  so  many  fireplaces  or  stoves,  would,  generally  at 
least,  be  regarded  as  continuing  ;  but  a  warranty  that  the  building 
was  five  hundred  feet  from  any  other  building  would  not  cause  the 
avoidance  of  the  policy  if  a  neighbor  should  afterwards  put  up  a 
house  within  one  hundred  feet,  without  any  act  or  privity  of  the 
insured. 

"We  have  seen,  that  statements  made  on  a  separate  paper  may  be 
so  referred  to  as  to  make  them  a  part  of  the  policy.  And  it  is 
usual  to  refer  in  this  way  to  the  written  application  of  the  insured, 
and  to  all  the  written  statements,  descriptions,  and  answers  to  ques- 
tions, which  he  makes  for  the  purpose  of  obtaining  insurance.  But 
a  fair  and  rational,  or,  in  some  cases,  a  liberal  construction,  will  be 
given  to  such  statements. 

It  is  quite  certain  that  the  word  warranty  need  not  be  used,  if 
the  language  is  such  as  to  import  unequivocally  the  same  meaning. 
And  an  indorsement  made  upon  the  policy  before  it  is  executed  may 
take  effect  as  a  part  of  it. 

A  statement  may  be  introduced  into  the  policy  itself,  and  be  con- 
strued not  as  any  warranty,  but  merely  as  a.  license  or  permission 
of  the  insurers  that  premises  may  be  occupied  in  a  certain  way,  or 
some  other  fact  occur  without  prejudice  to  the  insurance. 

A  representation,  in  the  law  of  insurance,  differs  from  a  war- 
ranty, in  that  it  is  not  a  part  of  the  contract.  If  made  after  the 
signing  of  the  policy  or  the  completion  of  the  contract,  it  cannot  of 
course  affect  it.  If  made  before  the  contract,  and  with  a  view  to 
effecting  insurance,  it  is  no  part  of  the  contract ;  but  if  it  be  fraudu- 
lent, it  makes  the  contract  void.  And  if  it  be  false,  and  known  to 
be  false  by  him  who  makes  it,  it  is  his  fraud.  To  have  this  effect, 
however,  it  must  be  material ;  and  there  is  no  better  test  or  standard 
for  this  than  the  question,  whether  the  contract  would  have  been 
made,  and  in  its  present  form  or  on  its  actual  terms,  if  this  state- 
ment had  not  been  made  and  believed  by  the  insurers.  If  the 
answer  is,  that  the  contract  would  not  have  been  made  if  this  state- 
ment had  not  been  made,  it  is  material ;  otherwise,  not.  The 

28 


412  FIRE  INSURANCE. 

general  rule  is,  that  the  statements  in  the  application  on  a  separate 
sheet  have  the  effect  only  of  representations,  and  do  not  avoid  the 
policy  unless  void  in  a  material  point,  or  unless  the  policy  makes 
them  specially  a  part  of  itself,  and  gives  them  the  effect  of  war- 
ranties. A  representation  may  be  more  certainly  and  precisely 
proved  if  in  writing ;  but  it  will  have  its  whole  force  and  effect  if 
only  oral. 

In  some  instances,  by  the  terms  of  the  policies,  any  misrepresen- 
tations or  concealments  avoid  the  policy.  And  it  is  held  that  the 
parties  have  a  right  to  make  such  a  bargain,  and  that  it  is  binding 
upon  them ;  and  the  effect  of  it  would  seem  to  be  to  give  to  repre- 
sentations the  force  and  influence  of  warranties. 

There  seems  to  be  this  difference  between  marine-policies  and 
fire-policies.  In  the  former,  a  material  misrepresentation  avoids 
the  policy,  although  innocently  made  ;  in  the  latter,  it  has  this 
effect  only  when  it  is  fraudulent.  This  distinction  seems  to  rest 
upon  the  greater  capability,  and  therefore  greater  obligation,  of  the 
insurers  against  fire  to  acquaint  themselves  fully  with  all  the  par- 
ticulars which  enter  into  the  risk.  For  they  may  do  this  either  by 
the  survey  and  examination  of  an  agent,  or  by  specific  and  minute 
inquiries.  If  a  warranty  is  broken,  however  innocently,  it  avoids 
all  policies,  whether  material  or  not.  And  this  difference  between 
a  warranty  and  a  representation  is  very  important. 

Concealment  is  the  converse  of  misrepresentation.  The  insured 
is  bound  to  state  all  that  he  knows  himself,  and  all  that  it  imports 
the  insurer  to  know,  for  the  purpose  of  estimating  accurately  the 
risk  he  assumes.  A  suppression  of  the  truth  has  the  same  effect 
as  an  expression  of  what  is  false.  And  the  rule  as  to  materiality 
and  as  to  a  substantial  compliance  is  the  same. 

Even  the  rumor  of  an  attempt  to  set  fire  to  a  neighboring  build- 
ing should  be  communicated ;  because  the  insurer  should  be  in 
formed  of  any  unusual  fact,  or  any  circumstance  relating  to  the 
building  materially  enhancing  the  risk. 

Insurers  must  be  understood  as  knowing  all  those  matters  of  com- 
mon information,  that  are  as  much  within  their  reach  as  in  that  of 
the  insured;  and  these  need  not  be  especially  stated.  But  any 
special  circumstance,  as  a  great  number  of  fires  in  the  neighbor- 


THE  RISK  INCURRED  BY  THE  INSURERS.  413 

hood,  and  the  probability  or  belief  that  incendiaries  were  at  work, 
should  certainly  be  communicated  ;  and  silence  on  such  a  point  — 
especially  if  the  place  of  business  of  the  insurers  was  at  a  considera- 
ble distance  from  the  premises — would  operate  as  a  fraud,  and 
avoid  the  policy.  And  any  questions  asked  must  be  answered,  and 
all  answers  must  be  as  full  and  precise  as  the  question  requires.  If 
there  were  a  provision  in  the  policy,  that  a  certain  fact,  if  existing, 
must  be  stated,  silence  in  reference  to  it  wouW  avoid  the  policy, 
however  immaterial  the  fact.  Concealment  in  an  answer  to  a  spe- 
cific question  can  seldom  or  never  be  justified  by  showing  that  it  was 
not  material.  Thus,  in  general,  nothing  need  be  said  about  title. 
But  if  it  be  inquired  about,  full  and  accurate  answers  must  be  made. 

"Where  the  insurance  company  has,  by  the  terms  of  the  policy,  a 
lien  upon  or  interest  in  the  premises  insured,  to  secure  the  premium 
note,  here  it  is  obvious  that  any  concealment  of  incumbrance  or 
defect  of  title  would  operate  as  a  fraud,  and  defeat  the  policy.  But 
in  all  such  cases  it  is  probable  that  specific  questions  are  put  respect- 
ing the  estate  and  title  of  the  insured. 

It  is  often  required  that  all  buildings  standing  within  a  certain 
distance  of  the  property  insured  shall  be  stated ;  but  this  might  not 
always  be  considered  as  applicable  to  personal  and  movable  prop- 
erty. Still,  an  insurance  of  chattels,  described  as  in  a  certain  place 
or  building,  would  be  held  to  amount  to  a  warranty  that  they  should 
remain  there ;  or  rather  it  would  not  cover  them  if  removed  into  a 
another  place  or  building,  unless,  by  some  appropriate  phraseology, 
the  parties  expressed  their  intention  that  the  insured  was  to  be  pro- 
tected as  to  this  property  wherever  it  might  be  situated.  It  is  not 
uncommon  to  insure  goods  that  are  in  course  of  transit,  against  fire  ; 
but  then  it  is  usual  to  name  the  places  from  which  and  to  which  ths 
goods  are  passing. 


SECTION  VI. 
THE   BISK   INCURRED   BY  THE    INSURERS. 

AT  the  time  of  the  insurance,  the  property  must  be  in  existence, 
and  not  on  fire,  and  not  at  that  moment  exposed  to  a  dangerous  fire 


414  FIRE  IXSTJKAXCE. 

in  the  immediate  neighborhood ;  because  the  insurance  assumes 
that  no  unusual  risk  exists  at  that  time. 

The  risk  taken  is  that  of  fire.  And  therefore  the  insurers  are  not 
chargeable  if  the  property  be  destroyed  or  injured  by  the  indirect 
effect  of  excessive  heat ;  or  by  any  efiect  which  stops  short  of  igni- 
tion or  combustion,  when  this  heat  is  purposely  applied,  and  the 
injury  is  caused  by  the  negligence  of  the  person  in  charge  of  it. 
Where,  however,  an  extraordinary  fire  occurs,  the  insurers  are 
clearly  liable  for  the  direct  effects  of  it,  as  where  furniture  or  pic- 
tures are  injured  by  the  heat,  although  they  do  not  actually  ignite. 

And  they  are  liable  for  the  injury  from  water  used  to  extinguish 
the  fire  ;  and  for  injury  to  or  loss  of  goods  caused  by  their  removal 
from  immediate  danger  of  fire ;  but  not  if  removed  from  a  mere 
apprehension  from  a  distant  fire,  even  if  it  be  reasonable  ;  and  not 
if  the  loss  or  injury  might  have  been  avoided  by  even  so  much  care 
as  is  usually  given  in  times  of  such  excitement  and  confusion. 

In  some  instances,  the  policies  require  that  the  insured  should  use 
all  possible  diligence  to  preserve  their  goods ;  and  such  a  clause 
would  strengthen  the  claim  for  injury  caused  by  an  endeavor  to 
save  them  by  removal.  So  the  insurers  are  liable  for  injury  or  loss 
sustained  by  the  blowing  up  of  buildings  to  arrest  the  progress  of 
a  fire. 

Lightning  is  not  fire  ;  and  if  property  be  destroyed  by  lightning, 
the  insurers  are  not  liable,  unless  there  was  also  ignition  ;  or  unless 
the  policy  expressly  insures  against  lightning. 

An  explosion  caused  by  gunpowder  is  a  loss  by  fire ;  not  so,  is 
an  explosion  caused  by  steam. 

"Whether,  when  the  negligence  of  the  insured  or  his  servants  is  to 
be  considered  as  the  sole  or  direct  cause  of  the  fire  or  loss,  the 
insurers  can  be  held,  has  been  somewhat  considered.  And  as  this  is 
the  most  common  and  universal  danger,  and  the  very  one  which 
induces  most  persons  to  insure,  there  has  been  some  disposition  to 
say  that  no  measure  or  kind  of  mere  negligence  can  operate  as  a 
defence.  And  in  effect  this  is  almost  the  law.  But  if  the  loss  be 
caused  by  negligence  of  the  insured  himself,  of  so  extreme  and  gross 
a  character  that  it  is  hardly  possible  to  avoid  the  conclusion  of  fraud, 
the  defence  might  be  a  good  one,  although  there  were  no  direct 


VALUATION.  415 

proof  of  fraud.     That  the  fire  was  caused  by  the  insanity  of  the 
insured  should  be  no  defence. 


SECTION  vn. 

VALUATION. 

VALUATION,  precisely  as  it  is  understood  in  a  marine  policy,  sel- 
dom enters  into  a  fire-policy,  —  never,  perhaps,  in  a  policy  made  by 
any  of  those  mutual  companies,  who  now  do  a  very  large  part  of  the 
insurance  of  this  country.  And  quite  seldom  is  a  building  valued 
when  insured  by  a  stock  company.  If  a  loss  happens,  whether  it  be 
total  or  partial,  the  insurers  are  bound  to  pay  only  so  much  of  the 
sum  insured  as  will  indemnify  the  assured.  But,  as  care  is  always 
taken  —  and  sometimes  required  by  law  —  not  to  insure  upon  any 
house  its  whole  value,  it  seldom  happens,  and,  if  the  proper  previous 
precautions  are  taken,  should  never  happen,  that  any  question  of 
value  arises  in  a  case  of  a  total  destruction  of  a  building  by  fire. 

But  mutual  companies  are  usually  forbidden  by  their  charter  to 
insure  more  than  a  certain  proportion  of  the  value  of  a  building ; 
and  this  requires  a  valuation  in  the  policy,  which  is  conclusive,  for 
some  purposes,  against  both  parties.  Of  course,  the  insurers  can 
never  be  held  to  pay  more  than  the  sum  insured.  And  if  their  char- 
ter or  by-laws  permit  a  company  to  insure  only  a  certain  proportion 
of  the  value,  as  three-fourths,  —  on  the  one  hand,  if  the  company 
insure  more  than  that  proportion,  as  $3,500  on  property  valued  at 
$4,000,  they  are  held. to  pay  only  $3,000,  and  the  assured  cannot 
show  that  the  building  was  really  worth  more  than  $4,000  ;  and,  on 
the  other  hand,  the  valuation,  if  not  fraudulent,  is  conclusive  against 
the  insurers  if  the  building  is  destroyed,  and  they  cannot  show,  in 
defence,  that  the  building  was  worth  less. 

I  know  nothing  to  prevent  the  parties  from  making  a  valued 
policy,  if  they  see  fit  to  do  so,  although  this  has  been  questioned. 
It  is  not  uncommon  for  companies  who  insure  chattels, —  as  piate, 
pictures,  statuary,  books,  or  the  like,  —  to  agree  on  what  shall  be 
the  value  in  case  of  loss. 


416  FIEE  INSTJEANCE. 

Sometimes  the  policy  reserves  to  the  insurers  the  right  to  have 
the  valuation  made  anew  by  evidence,  in  case  of  loss.  Then  if  a 
jury  find  a  less  valuation,  the  insurers  pay  the  same  proportion  of 
the  new  value  which  they  had  insured  of  the  former  valuation. 

The  value  which  the  insurers  on  goods  must  pay  is  their  value  at 
the  time  of  the  loss.  And  it  has  been  held,  that  a  fair  sale  at  auc- 
tion, with  due  precaution,  will  be  taken  to  settle  that  value  after  the 
fire,  provided  the  insurers  have  reasonable  notice  or  knowledge  that 
the  auction  is  to  take  place. 

The  valuation  determines  the  amount  which  the  insurers  must 
pay  only  in  case  of  total  destruction.  If  the  building  is  only  injured 
by  fire,  the  insurers  may  either  repair  it,  or  pay  the  cost  of  repair- 
ing it. 


SECTION    VIII. 
ALIENATION. 

POLICIES  against  fire  are  personal  contracts  between  the  insured 
and  the  insurers,  and  do  not  pass  to  any  other  party,  without  the 
express  consent  of  the  insurers. 

It  is  essential  to  the  validity  and  efficacy  of  this  contract,  that  the 
insured  have  an  interest  in  the  property  when  he  is  insured,  and 
also  when  the  loss  takes  place  ;  for  otherwise  it  is  not  his  loss,  and 
he  can  have  no  claim  for  indemnity.  If,  therefore,  he  alienates  the 
whole  of  his  interest  in  the  property  before  the  loss,  he  has  no  claim ; 
and  if  he  alienates  a  part,  retaining  a  partial  interest,  he  has  only  a 
partial  and  proportionate  claim. 

After  a  loss  has  occurred,  the  right  of  the  insured  to  indemnity  is 
vested  and  fixed ;  and  this  right  may  be,  assigned  for  value,  so  as  to 
give  an  equitable  claim  to  the  assignee,  without  the  consent  of  the 
insurers. 

Policies  against  fire  contain  a  provision  that  an  assignment  of  the 
property,  or  of  the  policy,  shall  avoid  the  policy.  So,  generally,  it 
is  hardly  worth  while  to  inquire  what  right  an  assignee,  without 
consent,  would  acquire  at  common  law,  or  in  equity,  where  there  is 
no  such  provision. 


NOTICE  AND  PROOF.  417 

A  dissolution  of  the  partnership  before  loss,  and  a  division  of  the 
goods,  so  that  each  partner  owned  distinct  portions,  was  held  to  be 
in  violation  of  a  condition  against  "  any  transfer  or  change  of  title 
in  the  property  insured." 

A  conveyance  by  one  insured,  intended  to  secure  a  debt,  will  be 
treated  in  a  court  of  equity  as  a  mortgage,  and  therefore  it  does  not 
terminate  the  interest  of  the  insured.  A  contract  to  convey  is  not 
an  alienation.  Nor  is  a  conditional  sale,  where  the  condition  must 
precede  the  sale,  and  is  not  yet  performed.  Nor  is  a  mortgage,  not 
even  after  breach,  and  perhaps  entry  for  a  breach,  and  not  until 
foreclosure.  Nor  selling  and  immediately  taking  back.  Sometimes 
alienation  by  mortgage  is  directly  prohibited. 

If  several  estates  are  insured  in  one  policy,  and  one  or  more  are 
aliened  (or  conveyed  away),  the  policy  is  void  as  to  those  only 
which  are  aliened.  If  many  owners  are  insured  in  one  policy,  a 
transfer  by  one  or  more  to  strangers,  without  the  act  or  concurrence 
of  the  other  owners,  will  avoid  the  policy  for  only  so  much  as  is 
thus  transferred. 

In  practice,  care  should  be  taken  to  have  all  such  transfers  regu 
larly  made  and  notified,  and  the  consent  of  the  insurer  obtained, 
fully  authorized,  and  duly  indorsed  or  certified,  and  all  the  rules 
or  usages  of  the  insurers  in  this  respect  complied  with. 


SECTION  IX. 
NOTICE    AND    PROOF. 

WHERE  the  policy  requires  a  certificate  of  the  loss,  the  production 
of  it  is  a  condition  precedent  to  any  claim  for  payment.  And  it 
must  be  such  a  certificate  as  is  required ;  but  a  substantial  compli- 
ance with  its  requirements  is  sufficient.  So,  too,  if  the  notice  is  to 
be  given  forthwith,  there  must  be  no  unreasonable  or  unnecessary 
delay.  And  all  the  circumstances  of  the  case  are  considered,  iii 
determining  whether  there  was  or  was  not  due  diligence.  Where  a 
certificate  is  required  to  be  furnished  "  as  soon  as  possible,"  it  is 
still  sufficient  if  it  be  furnished  within  a  reasonable  time.  But 


418  FIRE  INSURANCE. 

where  the  fire  took  place  in  November,  and  the  account  of  loss  was 
not.  furnished  till  the  March  following,  it  was  held  not  to  be  a  com- 
pliance with  the  conditions.  Generally,  this  is  a  question  for  the 


In  fire-policies,  as  the  premises  may  be  supposed  always  open  to 
the  inspection  of  the  agents  of  the  insurers,  a  general  notice  of  the 
fire  will  be  enough. 


SECTION  X. 
ADJUSTMENT   AND    LOSS. 

INSURERS  against  fire  are  not  held  to  pay  for  loss  of  profits,  gains 
of  business,  or  other  indirect  and  remote  consequences  of  a  loss  by 
fire.  We  do  not  know,  however,  why  profits  may  not  be  expressly 
insured  against  fire,  where  it  is  not  forbidden  by,  or  inconsistent 
with,  the  charter  of  the  insurers. 

There  is  one  wide  difference  between  the  principle  of  adjustment 
of  a  marine-policy  and  of  a  fire-policy.  In  the  former,  if  a  propor- 
tion only  of  the  value  is  insured,  the  insured  is  considered  as  his 
own  insurer  for  the  residue,  and  only  an  equal  proportion  of  the 
loss  is  paid.  Thus,  if,  on  a  ship  valued  at  $10,000,  85,000  be  in- 
sured, and  there  is  a  loss  of  one-half,  the  insurers  pay  only  one-half 
of  the  sum  they  insure,  just  as  if  some  other  insurer  had  insured 
the  other  $5,000.  But  in  a  fire-policy,  the  insurers  pay  in  all  cases 
the  whole  amount  which  is  lost  by  fire,  provided  only  that  it  does 
not  exceed  the  amount  which  they  insure. 

Most  of  the  fire-policies  used  in  this  country  give  the  insurers  the 
right  of  rebuilding  or  repairing  premises  destroyed  or  injured  by 
fire,  instead  of  paying  the  amount  of  the  loss.  If,  under  this  power, 
the  insurers  rebuild  the  house  insured,  at  a  less  cost  than  the 
amount  they  insure,  this  does  not  exhaust  their  liability ;  they  are 
now  insurers  of  the  new  building  for  the  difference  between  its  cost 
and  the  amount  they  have  insured.  And  if  the  new  building  burns 
down,  or  is  injured  while  the  policy  continues,  the  insured  may 
claim  so  much  as,  added  to  the  cost  already  incurred,  shall  equal 
the  sum  for  which  he  was  insured. 


FORMS  USED  IN  FIEE  INSURANCE.  419 

It  may  be  important  to  add,  that,  under  our  common  mutual 
policies,  the  insured  will  also  be  liable  for  assessments  for  losses 
after  the  destruction  of  his  building  by  fire,  during  the  whole  term 
of  the  policy. 

There  is  no  rule  in  fire-insurance  similar  to  that  which  makes  a 
deduction,  in  marine-insurance,  of  one-third,  new  for  old.  Still, 
the  jury,  to  whom  the  whole  question  of  damages  is  given,  are  to 
inquire  into  the  greater  value  of  a  proposed  new  building,  or  of  a 
repaired  building,  and  assess  only  such  damages  as  shall  give  the 
insured  complete  indemnity. 

"Where  insurers  reserved  a  right  to  replace  articles  destroyed,  if 
the  insured  refused  to  permit  them  to  examine  and  inventory  the 
goods  that  they  might  judge  what  it  was  expedient  for  them  to  do, 
such  conduct  on  the  part  of  the  insured  would  be  evidence  to  the 
jury  of  great  weight,  to  prove  an  overstatement  of  loss. 

I  have  not  thought  it  would  be  useful  to  give  Forms  of  various 
policies.  Applicants  never  make  them,  as  they  are  always  furnished 
by  the  insurance  companies ;  each  one  having  its  own  form,  and 
using  no  other.  But  the  following  Forms,  of  immediate  notice  of 
loss,  of  a  later  and  fuller  statement  under  oath,  with  a  magistrate's 
certificate,  and  assignments  of  policies,  may  be  found  useful.  They 
must  be  all  adapted,  in  practice,  to  the  peculiar  circumstances  of 
each  case. 

(102.) 
To  the  Fire-insurance  Company. 

Take  Notice,  That  on  the  day  of  inst.  (or  last)  a 

fire  broke  out  in  the  building  No.  in  Street,  in  the  city  of 

(or  otherwise  describe  the  location),  whereon  I  am  insured  by  you,  by  your  policy, 
No.  the  sum  of  dollars.  I  have  not  yet  learned, 

and  do  not  know,  in  what  way  the  fire  was  caused ;  but,  as  soon  as  I  am  able,  I  will 
give  you  further  information  on  the  subject.  (If  the  insured  or  his  agent  knows,  or 
has  reasonable  cause  for  supposing,  how  the  fire  was  caught,  he  should  say  so,  and 
state  what  particulars  he  can.) 

The  house  was  wholly  (or partially)  destroyed  by  fire;  and  I  shall  claim  a  pay- 
ment from  you  under  your  policy. 

\Vritten  and  sent  this  day  of  in  the  year 

(Signature.')     (Seal) 

Witness  to  the  signature  and  sending. 

(Signature  of  Witness.') 


420  FIRE 

Some  insurance  companies,  and,  indeed,  the  express  provisions  of 
some  policies,  require  that  a  sworn  statement  of  the  facts  and  circum- 
stances of  the  loss,  and  the  particulars  of  the  claim,  be  given  to  the 
insurance  company,  with  the  certificate  of  a  magistrate.  I  do  not 
know  that  this  course  might  not  be  always  prudent.  The  form  in 
which  it  is  done  must  vary  in  each  case,  and  be  adapted  to  the 
peculiarities  of  that  case.  But  the  following  Form  will  generally 
be  a  safe  guide. 

(103.) 

To  tJie Insurance  Company. 

Whereas  the  said  Insurance  Company,  by  their  policy  numbered 

,  and  dated  on  the  day  of  in  the  year 

caused  me  to  be  insured  in  the  sum  of  dollars  against  loss  or  damage 

by  fire  to  the  following-described  building ;  that  is  to  say  (here  describe  or  designate 
the  building  sufficiently  to  show  clearly  where  and  what  it  was,  taking  the  description 
from  the  policy,  but  not  copying  it  at  length),  Now,  I,  the  said  (name  of  Hit 

assured)  having  been  solemnly  sworn,  do  depose  and  say,  — 

1.  That  on  the  day  of  now  last  past,  between  the  hours 
of            and             a  fire  broke  out  in  said  building,  whereby  the  same  was  greatly 
damaged  (or  destroyed),  and  the  said  fire  was,  according  to  my  best  knowledge  and 
belief,  caused  by  (here  set  forth  the  causes  so  far  as  they  are  known,  or  supposed  on 
reasonable  grounds),  and  I  aver  that  the  said  fire  was  not  caused  by  me,  or  by  my 
design  and  concurrence,  or  with  any  previous  knowledge  on  my  part,  or  in  any 
manner  attributable  to  me  or  to  my  agency,  direct  or  indirect. 

2.  That  I  was  interested  in  the  said  property  in  the  following  manner ;  that  is 
to  say  (here  say  whether  the  insured  owned  the  property  himself,  or  was  a  tenant  of  it, 
or  a  landlord,  or  mortgagor  or  mortgagee,  or  trustee,  or  how  otherwise  he  was 
interested) 

3.  That  there  was  no  other  insurance  against  fire  of  the  said  property  (or,  if 
there  was  any  other,  state  what  it  was) 

4.  That  the  occupants  of  the  building  at  the  time  of  the  fire  were,  so  far  as  is 
known  to  me,  the  following  persons  (set  forth  the  names  of  Hie  occupants,  the  parts 
if  the  building  occupied  by  each  one,  and  the  purpose  for  which  it  was  occupied) 

5.  That  the  actual  value  of  the  building  in  dollars  at  the  time  of  the  fire,  was, 
according  to  my  best  belief  and  judgment,  dollars.     (If  the 
property  was  personal,  as  goods,  furniture,  or  the  like,  say,  as  may  appear  by  the 
schedule  annexed.) 

6.  That  the  whole  of  said  value  was  lost  by  the  fire ;  and  being  more  than  tht 
sum  insured  thereon,  I  now  claim  of  said  insurance  company  said  sum  of 


FORMS   USED  IN   FIRE  INSURANCE.  421 

dollars.  (Or  if  the  building  was  injured,  and  not  destroyed,  then  say  that  so  much  of 
the  value  — stating  the  amount  —  of  said  building  was  lost  by  thejire,  inasmuch  as  the 
building,  if  repaired,  cannot  be  restored  to  as  good  a  condition  as  before,  for  a  less 
amount  than  that  sum.) 

Witness  my  hand  at  this  day  of 

in  the  year 

(Signature.) 

(Certificate  to  be  appended  to  the  Foregoing.) 
STATE  OF 


.•S3. 

COUNTY  OF 

I  (name  of  the  magistrate)  a  justice  of  the  peace  hi  and  for  said  county 

(or  what  else  may  be  his  office),  dwelling  near  to  the  property  above  mentioned,  in 
the  town  (or  city)  of  have  investigated  the  circumstances  attending 

the  said  fire,  and  am  personally  acquainted  with  the  said  (name  of  insured), 

whose  character  is  good ;  and  I  believe  that  the  above  statement  to  which  the 
said  (name  of  insured)  has  made  oath  in  my  presence  is  true;  that  the  loss 

cannot  be  imputed  to  fraud  or  misconduct  on  his  part ;  and  that  he  has  suffered  by 
the  fire  a  loss  of  dollars.    I  am  not  in  any  way  interested  in  the 

said  property,  or  in  the  said  policy,  or  any  claim  under  the  same. 

In  Witness  of  all  which  I  have  hereunto  set  my  hand  and  my  seal  (of  office 
if  he  has  an  official  seal),  at  this  day  of 

in  the  year 

(Signature  of  Magistrate.)     (Seal.) 


(104.) 
Assignment  of  a  Policy  to  be  indorsed  Thereon. 

I  (name  of  the  insured)  insured  by  the  within  policy,  in  consideration  of  a 

dollar  paid  to  me  by  (name  of  the  assignee)  and  for  other  good  considerations, 

do  hereby  assign,  and  transfer  to  the  said  (name  of  the  assignee)  this  policy, 

together  with  all  the  right,  title,  interest,  and  claim  which  I  now  have  or  hereafter 
may  have,  in,  to,  or  under  the  same. 

Witness  my  hand  this  day  of  in  the  year 

(Signature.) 

Witness. 

It  is  always  best  to  \vrite  this  assignment  on  the  policy  itself;  but 
it  may  sometimes  happen  that  this  is  not  convenient  or  possible  ; 


422  FIRE  INSURANCE. 

the  insured  who  wishes  to  make  the  assignment  not  having  the 
policy  within  his  possession  or  easy  reach.  Then  the  assured  may 
use  the  following  Form :  — 

(105.) 

Wliereas,  the  Insurance  Company,  by  their  policy,  numbered 

and  dated  on  day  of  in  the  year,  caused 

me  to  be  insured  against  loss  or  damage  by  fire  on  a  certain  building,  being 
(designate  the  building  by  location  or  otherwise)  in  the  sum  of  dollars ; 

now,  I  the  said  (name  of  the  insured),  in  consideration  of  one  dollar  paid  to  me  by 
(name  of  the  assignee)  and  for  other  good  considerations,  have  transferred  and 
assigned,  and  do  by  these  presents  transfer  and  assign  unto  the  said  (name  of 
the  assignee)  the  said  policy  of  insurance,  and  all  the  right,  title,  interest  or  claim, 
which  I  now  have  or  ever  may  have,  in,  to,  or  under  the  same,  and  in  and  to  any 
sum  of  money  which  now  is  or  shall  ever  be  payable  thereon. 

Witness  my  hand  this  day  of  in  the  year 

(Signature.) 
(  Witness.) 

If  the  policy  be  on  goods,  or  if  it  be  not  a  fire-policy,  but  a  marine- 
policy,  or  a  life-policy,  then  the  assignment  must  be  made  to  conform 
to  the  facts. 

It  is  always  best  to  get  the  assent  of  the  insurance  company  to 
the  transfer  before  it  is  made.  And  always  the  assignment,  when 
made,  should  be  exhibited  without  loss  of  time,  to  them  or  to 
their  agent  authorized  to  give  their  assent,  and  this  assent  to  the 
assignment  be  obtained  and  written  upon  the  policy,  or,  if  that  can- 
not conveniently  be,  on  the  assignment,  and  in  the  books  of  the 
insurance  Company. 


THE  PURPOSE  AND  METHOD   OP  LIFE  INSURANCE.         423 

CHAPTER  XXVIII. 

H.  I  FIE - 


SECTION  I. 
THE    PURPOSE    AND    METHOD    OF    LIFE-INSURANCE. 

IP  A  insures  B  a  certain  sum  payable  at  B's  death  to  B's  repre- 
sentatives, we  have  only  the  insurer  and  insured,  as  in  other  cases 
of  insurance.  But  if  A  insures  B  a  sum  payable  to  B  or  his  repre- 
sentatives on  the  death  of  C,  although  0  is  often  said  to  be  insured, 
this  is  not  quite  accurate  ;  more  properly,  B  is  the  insured  party 
and  C  is  the  life-insured. 

Life-insurance  is  usually  effected  in  this  country  in  a  way  quite 
similar  to  that  of  fire-insurance  by  our  mutual  companies.  That 
is,  an  application  must  be  first  made  by  the  insured ;  and  to  this 
application  queries  are  annexed  by  the  insurers,  which  inquire,  with 
great  minuteness  and  detail,  into  every  thing  which  can  affect  the 
probability  of  life.  These  must  be  answered  fully;  and  if  the 
insurer  be  other  than  the  life-insured,  there  are  usually  questions 
for  each  of  them.  There  are  also,  in  some  cases,  questions  which 
should  be  answered  by  the  physician  of  the  life-insured,  and  others 
by  his  friends  or  relatives  ;  or  other  means  are  provided  to  have  the 
evidence  of  the  physician  and  friends. 

These  questions  are  not  precisely  the  same  in  the  forms  given  out 
by  any  two  companies ;  and  we  do  not  speak  of  them  in  detail  here. 
The  rules  as  to  the  obligation  of  answering  them,  and  as  to  the 
sufficiency  of  the  answers,  must  be  the  same  in  life-insurance  that 
we  have  already  stated  in  the  chapters  on  Fire  and  Marine  Insur- 
ance ;  or  rather  must  rest  upon  the  same  principles.  And  the  same 
rules  and  principles  of  construction  therein  set  forth  would  doubt- 
less be  applied  to  the  question  whether  a  contract  had  been  made, 
or  at  what  time  it  went  into  effect. 


424  LIFE 


SECTION   H 
THE    PREMIUM. 

IP  the  insurance  be  for  one  year  only,  or  less,  the  premium  is 
usually  paid  in  money,  or  by  a  note,  at  once.  If  for  more  than  a 
year,  it  is  usually  payable  annually.  But  it  is  common  to  provide 
or  agree  that  the  annual  payment  may  be  made  quarterly,  with 
interest  from  the  day  when  the  whole  is  due.  Notes  are  usually 
given  ;  but  if  not,  the  whole  amount  would  be  considered  due.  If 
A,  whose  premium  of  8100  is  payable  for  1  856  on  the  1st  day  of 
January,  then  pays  825,  and  is  to  pay  the  rest  quarterly,  but  dies 
on  the  1st  of  February,  the  875  due,  with  interest  from  the  1st  of 
January,  would  be  deducted  from  the  sum  insured.  If  the  policy 
provides  that  the  risk  shall  "  terminate  in  case  the  premium  charged 
shall  not  be  paid  in  advance  on  or  before  the  day  at  noon  on  which 
the  same  shall  become  due  and  payable,"  and  the  day  of  payment 
falls  on  Sunday,  the  premium  is  not  payable  until  Monday,  although 
the  assured  dies  on  Sunday  afternoon. 

Provision  is  sometimes  made  that  a  part  of  the  premium  shall  be 
paid  in  money,  and  a  part  in  notes,  which  are  not  called  in  unless 
needed  to  pay  losses.  The  greater  the  accommodation  thus  al- 
lowed, the  more  convenient  it  is,  obviously  to  the  insured,  but  the 
less  certain  will  he  be  of  the  ultimate  payment  of  the  policy,  be- 
cause, in  the  same  degree,  the  fund  for  the  payment  consists  ouly 
of  such  notes,  and  not  of  payments  actually  made  and  invested. 
There  is  a  great  diversity  among  the  life-insurance  companies  in 
this  respect.  But  even  the  strictest,  or  those  which  require  that 
all  the  premiums  shall  be  paid  in  money,  usually  provide  also  that 
an  amount  may  remain  overdue,  without  prejudice,  which  does  not 
exceed  a  certain  proportion  —  say  one-half  or  one-third  —  of  the 
money  actually  paid  in  on  the  policy.  This  is  considered,  under 
all  ordinary  circumstances,  safe  for  the  company,  because  every 
policy  is  worth  as  much  as  this  to  the  company.  Or,  in  other 
words,  it  would  always  be  profitable  for  the  company  to  obtain  a 
discharge  of  its  obligation  on  a  policy,  by  repaying  the  insured  so 
small  a  proportion  of  what  has  been  received  from  him. 


RESTRICTIONS  AND  EXCEPTIONS  IN  LIFE  POLICIES.        425 

Taking  a  note  would  certainly  be  a  waiver  of  immediate  pay- 
ment, if  not  itself  a  payment. 

The  premiums,  after  the  first,  must  be  paid  on  the  days  on  which 
they  fall  due.  If  no  hour  be  mentioned,  then  it  is  believed  that  the 
insured  would  have  the  whole  day,  even  to  midnight.  It  is  possi- 
ble, however,  that  he  might  be  restricted  to  the  usual  hours  of 
business,  and  perhaps  even  to  those  in  which  the  office  of  the  in- 
surers is  open  for  business. 

Practically,  the  utmost  care  is  requisite  on  the  part  of  the  as- 
sured, to  pay  his  premium  as  soon  as  it  is  due ;  and  it  is  a  wise  pre- 
caution to  pay  it  a  little  before.  This  is  the  only  proper  and  safe 
course.  But  we  believe  it  to  be  not  unusual  for  the  insurers  to 
accept  the  premium  if  offered  them  a  few  days  after,  and  continue 
the  policy  as  if  it  were  paid  in  season,  provided  no  change  in  the 
risk  has  occurred  in  the  mean  time. 

And  sometimes  the  rules  of  the  company,  and  in  some  States  the 
statutes,  provide,  that,  if  a  policy  be  defeated  by  a  non-payment  of 
the  premium,  the  insured  does  not  lose  all  that  he  has  paid ;  but  a 
certain  proportion  of  the  value  which  the  policy  then  had  shall  be 
paid  to  him. 

The  time  of  the  death  is  sometimes  very  important.  If  the  policy 
bo  for  a  definite  period,  it  must  be  shown  that  the  death  occurs 
within  it.  If  there  were  an  insurance  on  a  man's  life  for  a  year, 
and  some  short  time  before  the  expiration  of  the  term  he  received 
a  mortal  wound,  of  which  he  died  one  day  after  the  year,  the  in- 
surer would  not  be  liable.  And  the  terms  of  the  policy  may  possi- 
bly make  it  necessary  to  determine  which  of  two  persons  lived 
longest ;  as  if  a  sum  were  insured  on  the  joint  lives  of  two  persons, 
to  be  paid  to  the  representatives  of  the  survivor. 


SECTION  in. 

THE    RESTRICTIONS   AND    EXCEPTIONS    IN    LITE-POLICIES. 

OUR  policies  usually  contain  certain  restrictions  or  limitations  as 
to  place ;  the  life-insured  (he  whose  life  is  insured  for  his  own  or 


426  LIFE  INSURANCE. 

another's  benefit)  not  being  permitted  to  go  beyond  certain  limits, 
or  to  certain  places.  But  there  is  nothing  to  prevent  a  bargain 
permitting  the  life-insured  to  pass  beyond  these  bounds,  either  in 
consideration  of  new  and  further  payments,  or  of  the  common  pre- 
mium. 

So  certain  trades  or  occupations,  as  of  persons  engaged  in  making 
gunpowder,  or  of  engineers  or  firemen  about  steam-engines,  are 
considered  extra-hazardous,  and  as  therefore  prohibited,  or  re- 
quiring an  extra  premium. 

The  exception,  however,  which  has  created  most  discussion,  is 
that  which  makes  death  by  suicide  an  avoidance  of  the  policy.  The 
clause  respecting  duelling  is  plain  enough ;  and  no  one  can  die  in 
a  duel  without  his  own  fault.  But  it  is  otherwise  with  regard  to 
self-inflicted  death.  This  may  be  voluntary  and  wrongful,  or  the 
result  of  insanity  and  disease,  for  which  the  suffering  party  should 
not  be  held  responsible. 

The  general  principles  of  the  law  of  contracts,  and  of  the  law  of 
insurance  particularly,  would  lead  to  the  conclusion  that  "  death  by 
his  own  hands,"  but  without  the  concurrence  of  a  responsible  will 
or  mind,  would  not  discharge  the  insurers,  without  a  positive  pro- 
vision to  that  effect.  "We  should  put  such  a  death  on  the  same 
footing  with  one  resulting  from  a  mere  accident,  broiught  about  by 
the  agency,  but  without  the  intent,  of  the  life-insured.  As  if  poison 
were  sent  to  him  by  mistake  for  medicine,  and  he  swallowed  it 
under  the  same  mistake. 

Much  question  has  been  made,  when  a  man  may  be  believed  to  be 
dead,  simply  because  nothing  is  known  about  him,  or  has  been 
known  for  a  long  period.  But  there  is  not  and  cannot  be  any  other 
presumption  of  law  on  the  subject  than  that,  after  a  certain  period 
of  absence  and  silence,  there  is  a  presumption  of  death ;  and  seven 
years  has  been  mentioned  in  England  and  in  this  country  as  this 
period,  and  even  sanctioned  by  legislation  in  New  York.  But  all 
questions  of  this  kind  we  regard  as  pure  questions  of  fact.  "Which- 
ever party  rests  his  case  upon  the  death  or  the  life  of  a  certain 
person,  at  a  certain  time,  must  satisfy  the  jury  upon  this  point  by 
such  evidence  as  may  be  admissible  and  sufficient. 


THE  ASSIGNMENT  OF  A  LIFE-POLICY.  427 

SECTION  IV. 
THE    INTEREST    OF    THE    INSURED. 

EVERY  one  insured  in  any  way  must  have  an  interest  in  the  sub- 
ject-matter of  the  insurance.  A  person  may  effect  insurance  on  his 
own  life  in  the  name  of  a  creditor,  for  a  sum  beyond  the  amount  of 
the  debt,  the  balance  to  enure  to  his  family,  and  the  policy  will  be 
valid  for  the  whole  amount  insured.  Any  one  may  insure  his  own 
life  ;  but  if  the  insured  and  the  life-insured  are  not  the  same,  that 
is,  if  the  insured  be  insured  on  some  other  life  than  his  own,  inter- 
est must  be  shown. 

A  father  has  an  insurable  interest  in  the  life  of  his  minor  son. 
And  the  general  rule  is,  that  any  substantial  pecuniary  interest  is 
sufficient,  although  not  strictly  legal  nor  definite.  This  has  been 
held  in  the  case  of  a  sister  dependent  on  a  brother  for  support ; 
and  the  rule  would  be  held  to  apply  not  only  to  all  relations,  but 
where  there  was  no  relationship,  if  there  were  a  positive  and  real 
dependence.  That  is,  any  one  may  insure  a  sum  on  the  life  of  any 
other  person  on  whom  he  or  she  really  depends  for  support  or  for 
comfort.  And  generally,  it  is  said  to  be  enough,  if,  according  to 
the  ordinary  course  of  events,  pecuniary  loss  or  disadvantage  will 
naturally  and  probably  result  from  the  death  of  the  one  whose  life 
is  insured. 

So  an  existing  debt  gives  the  creditor  an  insurable  interest  in  the 
life  of  a  debtor.  But  if  the  debt  be  not  founded  on  a  legal  consider- 
ation, it  does  not  sustain  the  policy.  And  if  the  debt  be  paid  before 
the  death  of  the  debtor,  the  insurers  are  discharged. 


SECTION  V. 

THE    ASSIGNMENT    OF    A    OFE-POOCT. 

LIFE-POLICIES  are  assignable  at  law,  and  are  very  frequently  as- 
signed in  practice.  And  the  assignee  of  a  policy  is  entitled  on  the 
death  of  the  party  insured,  to  recover  the  full  sum  insured  without 


428  LIFE 

reference  to  the  amount  of  the  consideration  paid  by  him  for  the 
assignment.  A  large  proportion  of  the  policies  which  are  effected 
are  made  for  the  purpose  of  assignment ;  that  is,  for  the  purpose  of 
enabling  the  insured  to  give  this  additional  security  to  his  creditor. 
If  the  rules  of  the  company  or  the  terms  of  the  policy  refer  to  an 
assignment  of  it,  they  are  binding  on  the  parties.  On  the  one  hand, 
an  assignment  would  operate  as  a  discharge  of  the  insurers,  provided 
a  rule  or  expressed  provision  gave  this  effect  to  the  assignment.  And, 
on  the  other,  if  the  agreement  were  that  the  policy  should  continue 
in  favor  of  the  assignee,  even  after  an  act  which  discharged  it  as  to 
the  insured  himself,  —  as,  for  example,  his  suicide,  —  the  insurers 
would  be  bound  by  it. 

It  is  an  important  question  what  constitutes  an  assignment.  The 
general  answer  must  be,  any  act  distinctly  importing  an  assignment. 
And,  therefore,  a  delivery  and  deposit  of  the  policy,  for  the  purpose 
of  assignment,  will  operate  as  such,  without  a  formal  written  assign- 
ment. So  will  any  transaction  which  gives  to  a  creditor  of  the  in- 
sured a  right  to  payment  out  of  the  insurance. 

It  seems,  however,  that  delivery  is  necessary.  And  where  an 
assignment  was  indorsed  on  the  policy,  and  notice  given  to  the 
insurer,  but  the  policy  remained  in  the  possession  of  the  insured,  it 
was  held  that  there  was  no  assignment.  Where,  however,  the 
assignment  is  by  a  separate  deed,  which  is  duly  executed  and  de- 
livered, this  is  an  assignment  of  the  policy,  without  actual  delivery 
of  the  policy  itself. 


SECTION  VI. 

WARRANTY,    REPRESENTATION,    AND    CONCEALMENT. 

THE  general  principles  on  this  subject  are  the  same  which  we  have 
already  stated  in  reference  to  other  modes  of  insurance.  In  life- 
policies,  however,  the  questions  which  must  be  answered  are  so 
minute,  and  cover  so  much  ground,  that  difficulty  seldom  arises 
except  in  relation  to  the  answers.  One  advisable  precaution  is  for 
the  answerer  to  discriminate  carefully  between  what  he  knows  and 
what  he  believes.  If  he  says  simply  "  yes  "  or  "  no,"  or  gives  an 


WAKRANTY,   REPRESENTATION,   AND   CONCEALMENT,        429 

equiv  <Jent  answer,  this  is  in  most  cases  a  strict  warranty,  and  avoids 
the  policy  if  there  be  any  material  mistake  in  the  reply.  But  where 
the  answerer  adds  the  words  "  to  the  best  of  my  knowledge  and 
belief,"  he  ivarrants  only  the  fact  of  his  belief,  or,  in  other  words, 
nothing  but  his  own  entire  honesty. 

The  cases  which  turn  upon  the  answers  to  the  questions  are 
very  numerous ;  but  they  necessarily  rest  upon  the  especial  facts  of 
each  case,  and  hardly  permit  that  general  rules  should  be  drawn 
from  them.  Some,  however,  may  be  stated. 

The  first  is,  that  perfect  good  faith  should  be  observed.  The 
want  of  it  taints  a  policy  at  once  ;  and  the  presence  of  it  goes  far 
to  protect  one.  Thus,  where  the  life-insured  was  beginning  to  be 
insane,  but  was  wholly  unconscious  of  it>  the  policy  was  not  vitiated 
by  the  concealment,  although  two  doctors  in  attendance  upon  him 
knew  how  the  case  stood. 

Most  of  the  policies  of  the  present  day  provide  that  the  policy  is 
made  on  the  faith  of  the  statements  in  the  application  for  insurance 
with  the  stipulation,  and  that,  if  they  shall  be  found  in  any  respect 
untrue,  the  policies  shall  be  avoided.  Then  the  stipulations  are 
considered  as  warranties,  and  if  untrue,  even  in  a  point  immaterial 
to  the  risk,  avoid  the  policies. 

There  is  a  warranty,  or  statement,  usually  making  a  part  of 
nearly  all  life-policies ;  it  is  that  the  life-insured  is  in  good  health. 
But  this  does  not  mean  perfect  health,  or  freedom  from  all  symptoms 
or  seeds  of  disease.  It  means  reasonably  good  health  ;  and  loose  as 
this  definition,  or  rule,  may  be,  it  would  be  difficult  to  give  any 
other.  And  if  a  jury  on  the  whole  are  satisfied  that  the  constitu- 
tion of  one  warranted  to  be  "  in  good  health  "  is  radically  impaired, 
and  the  life  made  unusually  precarious,  there  is  a  breach  of  the 
warranty,  although  no  specific  disease  is  sho  trn  which  must  have 
that  effect.  On  the  other  hand,  this  warranty  is  not  broken  by  the 
presence  of  a  disease,  if  that  be  one  which  does  not  usually  tend  to 
shorten  life  (in  one  English  case  dyspepsia  was  said  to  be  such  a 
disease),  unless  it  were  organic,  or  had  increased  to  that  extreme 
degree  as  to  be  of  itself  dangerous. 

Consumption  is  the  disease  which  is  most  feared  in  this  country, 
as  well  as  in  England.  And  the  questions  which  relate  to  the 


430  LIFE  INSURANCE. 

symptoms  of  it,  as  spitting  of  blood,  cough,  and  the  like,  are  exceed- 
ingly minute.  But  here  also  there  must  be  a  reasonable  construc- 
tion of  the  answers.  Thus,  if  spitting  of  blood  be  positively 
denied,  there  may  be  no  falsification  in  fact,  though  literally  speak- 
ing the  life-insured  may  have  spit  blood  many  times,  as  when  a 
tooth  was  drawn,  or  from  some  accident.  If  there  be  an  action  on 
the  policy,  and  the  insurers  rest  their  defence  on  any  falsification 
of  this  kind,  the  question  usually  put  to  the  jury  is,  Was  the  party 
affected  by  any  of  these  or  similar  symptoms,  in  such  wise  that  they 
indicated  a  disorder  tending  to  shorten  life  ?  And  any  symptom  of 
this  kind,  however  slight,  —  as  a  drop  or  two  of  blood  having  ever 
flowed  from  inflamed  or  congested  lungs,  —  should  be  stated. 
Statements  materially  untrue  on  these  points  avoid  the  policy, 
although  the  insured,  at  the  time  of  his  application,  did  not  believe 
that  he  had  any  pulmonary  disease,  and  the  statement  made  by  him 
was  not  intentionally  false,  but,  according  to  his  belief,  true. 

The  insurers  always  ask  who  is  the  physician  of  the  life-insured, 
that  they  may  make  inquiries  of  him  if  they  see  fit.  And  his 
name  must  be  stated  fully  and  accurately.  It  is  not  enough 
to  give  the  name  of  the  usual  attendant ;  but  every  physician  really 
consulted  should  be  named,  and  every  one  consulted  as  a  physician, 
although  he  is  an  irregular  practitioner  or  quack. 

If  the  warranty  be  that  the  life-insured  is  a  person  of  sober  and 
temperate  habits,  it  has  been  held,  in  an  action  on  such  a  policy, 
that  the  jury  are  not  to  inquire  whether  his  habits  of  drinking  are 
such  as  might  injure  his  health ;  for  if  he  has  any  "  habits  of  drink- 
ing," this  would  discharge  the  insurers,  because  they  have  a  perfect 
right  to  say  that  they  will  insure  only  those  who  are  temperate. 
But  it  may  be  answered,  that  although  the  insurers  have  this 
right,  and  there  may  be  good  reasons  why  this  should  be  the  general 
practice,  yet  unless  they  use  the  word  "  abstinence,"  or  something 
equivalent,  they  have  no  right  to  say  that  any  one  is  not  "  temper- 
ate "  who  does  not  drink  enough  to  affect  his  health ;  for  as, 
generally,  all  intemperance  must  affect  health  injuriously,  if  there 
be  no  such  injury,  the  presumption  would  be  that  there  was  no 
intemperance ;  and  there  is  clearly  a  broad  distinction  between 
temperance  and  total  abstinence. 


WARRANTY,   REPRESENTATION,   AND  CONCEALMENT.        431 

An  answer,  "  not  subject  to  fits,"  is  not  necessarily  falsified  by 
the  fact  that  the  life-insured  has  had  one  or  more  fits.  But  if  the 
question  had  been,  "  Have  you  ever  had  fits  ?  "  then  it  is  said  that 
any  fit  of  any  kind,  and  however  long  before,  must  be  stated.  But 
if  a  man  had  a  fit  when  a  young  child,  and  forgot  to  mention  it,  or 
considered  it  wholly  unimportant,  and  it  had  nothing  to  do  with  his 
state  of  health,  it  would  hardly  be  held  a  falsification  which  would 
avoid  the  policy. 

As  there  is  always  a  general  question  as  to  any  facts  affecting 
health  not  particularly  inquired  of,  a  concealment  of  such  a  fact 
goes  to  a  jury,  who  are  to  judge  whether  the  fact  was  material,  and 
whether  the  concealment  were  honest.  As  when  a  life-insured  was 
a  prisoner  for  debt,  and  so  without  the  benefit  of  air  and  recreation, 
and  this  was  not  told ;  and  where  a  woman  whose  life  was  insured 
had  become  the  mother  of  a  child  under  disgraceful  circumstances 
some  years  before,  and  this  fact  was  concealed ;  the  plaintiff  was 
non-suited. 

If  the  policy,  and  the  papers  annexed  or  connected,  put  no  limits 
on  the  location  of  the  life-insured,  he  may  go  where  he  will.  But 
if,  when  applying  for  insurance,  he  intends  going  to  a  place  of 
peculiar  danger,  and  this  intention  is  wholly  withheld,  it  would  be  a 
fraudulent  concealment. 

If  facts  be  erroneously  but  honestly  misrepresented,  and  the  in- 
surers, when  making  the  policy,  knew  the  truth,  the  error  does  not 
affect  the  policy.  Nor  does  the  non-statement  of  a  fact  which 
diminishes  the  risk. 

If  upon  a  proposal  for  a  life  insurance,  and  an  agreement  thereon, 
a  policy  be  drawn  up  by  the  insurers,  and  presented  to  the  insured 
and  accepted  by  them,  which  differs  from  the  terms  of  the  agree- 
ment, and  varies  the  rights  of  the  parties  concerned,  equity  will 
interfere  and  deal  with  the  case  on  the  footing  of  this  agreement, 
and  not  of  the  policy.  But  it  may  be  shown  by  evidence  and  cir- 
cumstances, that  it  was  intended  by  the  insurers  to  vary  the  agree- 
ment, and  propose  a  different  policy  to  the  insured,  and  that  this 
was  understood  by  the  insured,  and  the  policy  so  accepted. 


432  LIFE  INSURANCE. 


SECTION  VIL 

INSURANCE    AGAINST    ACCIDENT,    DISEASE,    AND    DISHONESTY    <MT 

SERVANTS. 

OF  late  years,  both  of  these  forms  of  insurance  have  come  into 
practice,  but  not  so  long  or  so  extensively  as  to  require  that  we 
should  speak  of  them  at  length.  In  general  it  must  be  true,  that 
the  principles  already  stated  as  those  of  insurance  against  marine 
peril,  or  fire,  or  death,  must  apply  to  these  other  —  and  indeed  to  all 
other — forms  of  insurance,  excepting  so  far  as  they  may  be  quali- 
fied by  the  nature  of  the  contract. 

From  one  interesting  case  which  has  occurred  in  England,  it  seems 
that,  when  an  application  is  made  for  insurance,  or  guaranty,  against 
the  fraud  or  misconduct  of  an  agent,  questions  are  proposed,  as  we 
should  expect,  which  are  calculated  to  call  forth  all  the  various  facts 
illustrative  of  the  character  of  the  agent,  and  all  which  could  assist 
in  estimating  the  probability  of  his  fidelity  and  discretion.  But  a 
declaration  of  the  applicant  as  to  the  course  or  conduct  he  was  to 
pursue  was  distinguished  from  a  warranty.  He  may  recover  on 
the  policy,  although  he  changes  his  course,  provided  the  declaration 
was  honest  when  made,  and  the  change  of  conduct  was  also  in  good 
faith.  In  this  case  the  application  was  for  insurance  of  the  fidelity 
of  the  secretary  of  an  institution.  There  was  a  question  as  to  when, 
and  how  often,  the  accounts  of  the  secretary  would  be  balanced  and 
closed ;  and  the  applicant  answered  that  these  accounts  would  be 
examined  by  the  financial  committee  once  a  fortnight.  A  loss  en- 
sued from  the  dishonesty  of  the  secretary  ;  and  it  appeared  to  have 
been  made  possible  by  the  neglect  of  the  committee  or  the  directors 
to  examine  his  accounts  in  the  manner  stated  in  the  policy.  But 
the  insurers  were  held,  on  the  ground  that  there  was  no  warranty. 


WHAT  IS  ESSENTIAL  TO   SUCH  DEEDS.  433 

CHAPTER    XXTY, 

IXEIED9    COIWEYEVO 


SECTION  L 
WHAT    IS    ESSENTIAL    TO    SUCH    DEEDS. 

BY  the  old  law,  no  instrument  was  considered  made  until  it  was 
sealed  ;  then  it  was  thought  to  be  done,  and  the  word  deed,  which 
literally  means  only  something  done,  was  given  to  every  written 
instrument  to  which  a  seal  was  affixed  ;  and  that  is  the  legal  mean- 
ing now.  But  the  common  meaning  of  the  word  is  an  instrument 
for  the  sale  of  lands  ;  and  it  is  of  this  that  we  would  now  treat. 

By  the  statutes  and  usage  of  this  country,  generally,  no  lands  can 
be  transferred  excepting  by  a  deed,  which  is  signed,  sealed,  acknowl- 
edged, delivered,  and  recorded. 

What  the  deed  should  be,  that  is,  in  what  words  it  should  be  ex- 
pressed, we  can  best  show  by  the  forms  appended  to  this  chapter, 
and  do  not  propose  to  say  more  about  it  than  this.  It  is  not 
safe  to  depart  from  forms,  and  established  phrases,  which  have 
passed  before  the  courts  so  often,  that  their  exact  meaning  is  cer- 
tainly known.  There  are  things  which  seem  to  be  and  perhaps  are 
vain  repetitions  ;  and  for  the  usual  words  it  may  be  thought  that 
others  of  the  same  or  better  meaning  may  be  substituted.  Such 
changes  may  be  made,  perhaps,  without  detriment  ;  but  perhaps, 
also,  with  ruinous  results  ;  and  it  is  not  wise  to  run  the  risk. 

It  should  be  signed  ;  and  this  means,  properly,  that  the  seller  or 
grantor  should  write  his  name  in  the  usual  way,  in  the  proper  place, 
and  with  ink.  If  the  grantor  cannot  write  his  name,  he  may  merely 
make  his  mark.  It  has  been  said  that  writing  with  a  lead  pencil  is 
enough,  but  it  would  not  be  safe  to  trust  to  it.  The  name  of  the 
grantee  should  be  distinctly  written  in  the  proper  place,  in  ink. 
Sometimes,  in  our  large  cities,  an  agent  buys  land  for  a  principal 


434  DEEDS  CONVEYING  LAND. 

who  does  not  wish  to  be  known,  and  the  agent's  name  is  inserted  as 
grantee,  in  pencil,  and  the  deed  is  so  executed  and  acknowledged 
and  delivered  ;  and  some  time  afterwards  the  agent  rubs  his  name 
out,  and  writes  the  name  of  his  principal,  the  actual  buyer,  instead. 
But  this  is  a  very  unsafe  and  reprehensible  practice,  and  the  deed 
cannot  be  considered  satisfactory. 

The  deed  of  a  corporation  must  be  signed  by  an  agent  or  attorney, 
who  should  be  careful  to  execute  it  in  the  manner  indicated  in  some 
of  the  forms  appended.  In  one  case,  in  Massachusetts,  whore  a 
deed  was  written  throughout  as  the  deed  of  a  corporation,  and  tbeir 
treasurer  signed  it  thus :  "  In  witness  whereof,  I,  the  said  0  C,  in 
behalf  of  the  said  company,  and  as  their  treasurer,  have  hereunto 
set  my  hand  and  seal,"  —  it  was  held  that  this  was  the  deed  of 
the  treasurer,  and  not  the  deed  of  the  corporation,  and  did  not 
transfer  the  lands.  This  is  an  extreme  case,  and  the  law  might  not 
always  be  applied  with  so  much  severity ;  but  it  is  best  not  to  incur 
any  such  risk.  So,  too,  the  rule  that  a  person  who  is  to  be  author- 
ized to  affix  the  seal  of  another  should  be  authorized  under  the 
seal  of  the  principal,  is  so  general,  that,  although  it  has  important 
exceptions,  it  should  always  be  observed. 

The  seal  is  properly  a  piece  of  paper  wafered  on,  or  sealing-wax 
pressed  on.  In  the  New  England  States  generally,  and  in  New 
York,  nothing  else  satisfies  the  legal  requirement  of  a  seal.  In  the 
Southern  and  Western  States  generally,  a  scrawl,  intended  for  a 
seal,  usually  made  by  writing  the  word  "  seal "  within  a  square  or 
diamond,  is  regarded  in  law  as  a  seal.  If  there  be  but  one  seal  on 
an  instrument,  and  many  parties,  all  of  whom  should  seal  it,  this 
seal  will  be  taken  generally  for  the  seal  of  each  one;  although, 
properly,  each  signer  should  put  a  seal  against  his  own  name. 

The  deed  should  be  delivered.  If  a  man  makes  a  deed,  and 
acknowledges  it,  and  keeps  it  in  his  possession,  and  dies,  the  deed 
has  no  effect  whatever ;  no  more  than  if  the  grantor  had  put  it  in 
the  fire.  Even  where  it  was  recorded,  and  then  taken  back  by  the 
grantor  and  kept  by  him,  with  words  going  to  show  that  the  grantor 
did  not  wish  the  grantee  to  know  of  it,  it  was  held  not  to  have  been 
delivered.  But  there  are  no  especial  words  or  form  necessary  for 
delivery.  If  the  deed,  in  any  way  whatever,  gets  into  the  possession 


WHAT  IS    ESSENTIAL  TO  SUCH  DEEDS.  435 

of  the  grantee,  with  the  knowledge  and  consent  of  the  grantor,  it  is 
a  delivery. 

The  grantor  may  deliver  it  by  his  agent,  and  it  may  be  delivered 
to  the  agent  of  the  grantee,  authorized  by  him  to  receive  it.  More- 
over, the  law  permits  a  kind  of  conditional  delivery.  Thus,  the 
grantor  may  deliver  the  deed  to  a  third  person,  to  be  delivered  by 
him  to  the  grantee  on  a  certain  condition,  or  when  a  certain  thing 
is  done  ;  and  when  that  condition  is  performed,  or  the  thing  is 
done,  the  deed  belongs  to  the  grantee,  and  takes  effect  in  the  same 
way  as  if  it  had  been  delivered  to  him  personally.  In  legal  lan- 
guage, the  deed  is  said  to  be  delivered  to  the  third  person,  as  an 
escrow. 

So  the  grantor  may  put  the  deed  in  the  hands  of  the  third  per- 
son, with  directions  to  give  it  to  the  grantee  after  the  death  of  the 
grantor,  provided  the  grantor  does  not  reclaim  it  in  the  mean  time. 
Then  the  grantor  can  reclaim  it  whenever  he  will,  which  he  cannot 
do  after  he  has  delivered  it  to  the  grantee ;  but  if  he  does  not 
reclaim  it  during  his  life,  at  his  death  it  becomes  the  property  of  the 
grantee,  and  the  law  now  considers  that  it  was  delivered  to  him 
when  first  delivered  to  that  third  party.  So  that  deed  is  good  even 
against  creditors,  provided  that  the  grantor  was  perfectly  solvent 
when  he  put  the  deed  in  the  hands  of  the  third  party,  and  acted 
altogether  in  good  faith. 

If  a  deed  to  a  married  woman  be  delivered  either  to  her  or  to 
her  husband,  it  is  sufficient. 

As  there  must  be  delivery  to  the  grantee,  or  to  some  one  for  him, 
so  there  must  be  assent  and  acceptance  on  his  part.  The  law  will 
help  any  evidence  tending  to  show  such  assent,  by  presuming  in 
favor  of  the  grantee's  assent  if  the  deed  be  wholly  and  only  favor- 
able to  him.  But  not  if  there  is  money  to  be  paid  by  him,  or  any 
thing  important  to  be  done  if  lie  accept  the  deed. 

It  is  usual  and  proper  that  the  execution  of  the  deed  should  be 
attested  by  witnesses.  In  many  of  our  States,  two  witnesses  are 
required  by  statute.  In  New  York,  one  is  enough.  In  the  greater 
number,  witnesses  are  not  absolutely  required  by  statutes,  nor  by 
strict  law  of  any  kind ;  but  even  there  it  is  usual  and  safer  to  have 
them. 


436  DEEDS  CONVEYING  LAND. 

The  witness  should  see  the  party  sign ;  but  if  the  deed  is  signed 
near  him,  and  is  immediately  brought  to  him  by  the  grantor,  who 
tells  him  that  is  his  signature,  and  asks  him  to  witness,  this  would 
be  sufficient  in  law. 

It  is  desirable  that  witnesses,  when  called  on  to  testify,  should 
remember  the  signature,  sealing,  &c. ;  but  it  is  sufficient  in  law  that 
they  are  certain  of  their  handwriting,  and  can  declare  under  oath 
that  they  should  not  have  attested  the  execution  and  delivery  if 
they  had  not  seen  it.  If  witnesses  are  dead,  proof  of  their  hand- 
writing is  sufficient ;  and  if  this  cannot  be  offered,  then  proof  of  the 
handwriting  of  the  grantor  is  enough.  If  witnesses  attest  the  sign- 
ing, sealing,  and  delivery,  in  the  common  form,  proof  of  their  hand- 
writing, in  case  of  their  death  or  absence,  is  proof  of  the  execution 
and  delivery  of  the  deed. 

The  witness  should,  properly,  be  of  sufficient  age  and  understand 
ing,  but  may  be  a  minor.  He  should  have  no  interest  in  the  deed 
Hence  a  wife  is  not  a  proper  witness  of  a  deed  to  her  husband 
But  the  courts,  and  especially  a  court  of  equity,  would  seldom  per 
mit  a  deed  to  be  avoided  through  the  incompetence  of  a  witness,  if 
there  were  no  suspicion  of  wrong. 

Generally  a  deed  is  valid  as  between  the  parties,  although  not 
acknowledged ;  but,  to  entitle  it  to  be  recorded,  it  must  be  acknowl- 
edged. For  this  purpose  the  grantor  must  go  before  a  person  qual- 
ified by  law  to  receive  acknowledgments,  and  exhibit  the  deed  to 
him,  and  acknowledge  it  as  his  free  act  and  deed ;  and  the  person 
receiving  the  acknowledgment  then  certifies  that  he  has  received 
this  acknowledgment,  under  the  proper  date. 

In  general  an  acknowledgment  may  be  made  before  any  justice 
of  the  peace,  or  a  commissioner  appointed  for  the  State  in  which 
the  land  to  be  conveyed  is  situated,  if  the  deed  is  executed  in 
another  State,  or  any  consul  or  consular  agent  of  the  United  States 
if  the  deed  is  executed  in  a  foreign  country.  This  acknowledgment 
must  be  made,  or  the  deed  cannot  be  recorded.  And  the  deed  is 
invalid,  as  notice,  if  the  acknowledgment  is  defective,  although  it  is 
actually  recorded. 

Formerly,  all  the  grantors  acknowledged  the  deed ;  and  this  con- 
tinues to  be  usual  in  most  places,  and  is  the  safest  practice.  But, 


WHAT  IS  ESSENTIAL  TO   SUCH  DEEDS.  437 

in  some  places,  it  is  now  sufficient  in  law,  if  either  of  the  grantors 
acknowledge  it. 

In  many  States,  if  a  wife,  separately  or  joining  with  her  husband, 
conveys  away  her  land,  a  particular  form  and  mode  of  acknowledg- 
ment is  required,  in  order  to  ascertain  that  she  does  it  of  her  own 
free  will ;  and  any  such  directions  or  requirements  should  be  fol- 
lowed with  great  care.  The  Forms  added  to  this  chapter  will  show 
how  this  is  done. 

An  attorney,  A  B,  who  executes  a  deed  for  another,  C  D, 
should  acknowledge  it  as  "  the  free  act  and  deed  of  the  said  C  D," 
and  not  as  his  own. 

The  justice  taking  the  acknowledgment  must  be  careful  to  state 
it  in  his  certificate,  exactly  as  it  was  made  before  him. 

In  some  of  our  States,  recent  laws  have  in  effect  required  the 
assent  of  the  wife  to  a  transfer  of  the  husband's  real  estate ;  not 
merely  to  convey  her  dower,  but  to  pass  the  property  to  the  grantee. 
"We  do  not  enumerate  or  specify  these  States  here  ;  having  given  pre- 
viously an  abstract  of  the  law  of  husband  and  wife  in  all  the  States. 

In  all  our  States,  we  have  the  excellent  system  of  registering  (or 
recording,  as  it  is  more  frequently  called)  all  deeds  of  land  in  the 
public  registers  of  the  county  in  which  the  land  lies.  This  was 
adopted  for  the  purpose  of  giving  certainty  and  notoriety  to  title, 
and  it  works  admirably  well.  The  investigation  of  title  is  usually 
easy  to  those  accustomed  to  this  mode  ;  and  every  purchaser  of 
land  should  ascertain  that  the  deed  will  give  him  good  title  before 
he  takes  it. 

The  law  generally  requires  that  a  deed  of  lauds  should  be  ac- 
knowledged and  recorded,  to  have  full  effect ;  but  judicial  decisions 
have  everywhere  qualified  the  force  of  these  words,  and  in  some 
instances  the  language  of  the  statutes  varies.  But  the  rules  of  law 
in  reference  to  the  recording  are  quite  uniform  in  all  the  States, 
and  are  as  follows. 

In  the  first  place,  every  acknowledged  deed  is  considered  as  re- 
corded as  soon  as  it  is  in  the  hands  of  the  recording  officer ;  and 
therefore  he  generally  minutes  upon  it  the  day,  hour,  and  minute 
when  it  was  received  by  him.  This  may  be  very  important ;  for  if 
A  makes  his  deed  and  delivers  it  to  B,  who  presents  it  for  record  at 


438  DEEDS   CONVEYING  LAND. 

five  minutes  past  noon,  and  C,  a  creditor  of  A,  attaches  the  same 
estate  at  four  minutes  past  noon  of  the  same  day,  the  grantee  loses 
the  land  and  the  creditor  gets  it ;  but  the  grantee  saves  it,  if  he 
presents  it  to  the  office  three  minutes  and  fifty  seconds  after  noon. 

In  the  next  place,  as  the  purpose  of  public  registration  is  general 
notoriety,  a  deed  is  perfectly  good  without  record  against  the  grant- 
or himself  and  his  heirs,  because  the  grantor  himself  could  not  but 
know  of  the  deed,  and,  as  all  title  passed  out  of  him  by  it,  his  heirs 
could  take  none  from  him. 

And  finally,  a  deed  not  recorded  is  just  as  good  as  if  it  had  been 
recorded,  against  any  parties,  or  the  heirs  of  any  parties,  who  took 
the  land  from  the  grantor  by  a  subsequent  deed,  even  for  a  full 
price,  if  they  had  at  the  time  notice  or  knowledge  of  the  prior  and 
unrecorded  deed.  Many  wise  persons  have  doubted  the  expediency 
of  this  last  rule,  because  it  tends  to  raise  troublesome  questions,  and 
to  make  grantees  careless  about  recording  their  deeds.  But  the 
rule  itself  is  universally  and  firmly  established,  and  in  some  statutes 
requiring  record  this  exception  is  expressed. 

A  deed  should  be  dated ;  but,  if  it  have  no  date,  it  will  take  effect 
from  delivery.  Any  erasures  or  alterations  should  be  noticed  and 
stated  above  the  names  of  the  witnesses,  as  having  been  made  before 
the  execution  of  the  instrument.  Any  material  alteration  by  a 
grantee,  or  by  his  procurement,  makes  the  deed  void  in  most  cases, 
so  far  as  he  is  concerned. 

It  is  usual,  and  therefore  proper,  to  name  executors,  administra- 
tors, &Q.J  as  in  the  forms  appended  ;  but,  generally,  the  rights  and 
obligations  of  the  deceased  fall  by  law  on  their  legal  representatives. 


SECTION  IL 
THE    USUAL    CLAUSES    IN    DEEDS. 

IT  is  customary  to  recite  in  all  deeds  the  consideration  on  which 
they  are  made.*  This  is  usually  the  price  paid  for  them.  Sometimes 
it  is  this  price  in  part,  and  other  things  in  part.  Sometimes  there 
is  no  price  paid,  the  land  being  either  a  gift,  or  conveyed  for  other 


THE  USUAL  CLAUSES  IN  DEEDS.  439 

considerations.  In  the  great  majority  of  deeds,  the  language  used 
is,  "  in  consideration  of  (so  much  money)  paid  me  by  the  said 
(grantee),  the  receipt  whereof  I  acknowledge."  Or  it  is,  "in  con- 
sideration of  one  dollar  paid  me,  the  receipt  of  which  I  acknowledge, 
and  divers  other  considerations ; "  or,  "  in  consideration  of  one 
dollar  to  me  paid,  the  receipt  of  which  I  acknowledge,  and  of  the 
love  and  good-will  I  bear  to  the  said  (grantee)."  It  is  always  cus- 
tomary, although  not  necessary,  to  put  in  "  one  dollar,"  or  some 
other  nominal  sum,  although  no  price  is  paid. 

Although  the  price  is  inserted,  and  the  receipt  thereof  be  acknowl- 
edged, the  seller  is  not  bound  by  his  receipt.  It  is  a  general  rule, 
as  has  been  stated,  that  all  written  receipts  of  money  are  open  to 
evidence,  as  written  contracts  generally  are  not.  Under  this  rule, 
the  seller  may  sue  for  the  whole  or  any  part  of  the  money  of  which 
he  has  acknowledged  the  receipt,  if  he  can  prove  that  the  money  ha 
demands  has  not  been  paid  to  him.  He  cannot,  however,  say  that 
the  money  has  not  been  paid,  and  therefore  the  deed  is  void,  and  the 
land  has  not  passed  to  the  grantee.  For  only  that  part  of  the  deed 
which  is  a  receipt  is  open  to  denial  or  evidence. 

Of  the  words  of  conveyance,  which  are  usually  "  give,  grant,  sell, 
and  convey,"  it  needs  only  be  said,  that  it  is  best  to  use  them,  because 
it  is  usual,  but  that  other  words,  or  these  with  some  change,  would 
be  sufficient  in  law. 

The  description  of  the  land  should  be  minute  and  accurate,  to  an 
extreme  degree.  In  this  country,  it  is  customary  and  well  to  refer 
to  the  previous  deeds  by  which  the  grantor  obtained  his  title.  This 
is  done  by  describing  them  by  their  parties,  date,  and  book  and  page 
of  registry.  It  may  be  well  to  remark,  that  a  deed  referred  to  in  a 
deed  becomes,  for  most  purposes  in  law,  a  part  of  the  deed  referring. 

By  the  law  of  England  and  of  America,  if  land  is  conveyed  by 
deed  to  "  A  B,"  the  grantee  takes  it  for  his  life  only.  Nor  will  he 
take  it  in  full  property  (or,  to  use  the  technical  law-term,  in  fee 
simple),  that  is,  with  full  power  of  disposing  of  it  during  his  life  or 
at  his  death,  with  a  right  on  the  part  of  his  heirs  to  it  if  he  does  not 
dispose  of  it,  unless  it  is  given  to  "  A  B  and  his  heirs."  These  last 
words,  which  are  commonly  called  words  of  inheritance,  must 
always  be  added ;  for  although  there  are  some  qualifications  to  this 


440  DEEDS  CONVEYING  LAND. 

rule,  which  might  help  those  who  take  such  a  deed  inadvertently, 
there  are  none  to  which  it  would  be  safe  to  trust. 

The  deed  is  terminated  by  this  clause  of  execution  :  "  In  witness 

whereof,  I,  the  said  A  B,  on  the day  of in  the  year , 

have  hereunto  set  my  hand  and  seal,"  or  "  subscribed  (or  written) 
my  name  and  affixed  my  seal."  And  there  should  be  no  departure 
from  this,  although  an  exact  adherence  to  this  formula  may  not  be 
necessary  to  the  validity  of  the  deed.  This  clause  is  often  called 
the  "  In  Testimonium  clause." 

If  the  deed  contains  nothing  but  what  has  now  been  said,  it  will 
convey  the  land,  or  all  the  right,  title,  and  interest  in  and  to  the 
land,  possessed  by  the  grantor.  But  it-is  only  what  is  called  a  quit- 
claim deed.  That  is,  it  is  not  a  warranty  deed.  These  phrases,  which 
are  in  common  use,  explain  themselves.  Originally,  a  quitclaim 
deed  was  intended,  and  indeed  operated,  only  where  the  grantee 
already  held  possession  of  the  land,  or  some  title  to  it,  and  the 
grantor  intended  to  renounce  all  his  right  or  title  in  favor  of  the 
grantee.  But  it  was  soon  used  where  a  man  intended  to  sell  and 
convey  land,  but  not  to  give  any  warranty.  And  now,  because  there 
is  some  question,  in  some  of  our  States,  as  to  the  effect  of  the  words 
"  giye)  grant,  sell,  and  convey,"  although  there  be  no  express  war- 
ranty in  the  deed,  it  is  best,  and  it  is  usual,  when  only  a  quitclaim 
is  intended,  without  any  warranty  whatever,  to  substitute  for  the 
words  of  conveyance  above  mentioned  the  words  "  grant  and  quit- 
claim," or,  more  accurately,  "  release  and  quitclaim."  Then,  if  the 
grantee  afterwards  loses  the  land  because  the  grantor  had  no  title 
to  it,  the  grantor  is  nevertheless  under  no  responsibility,  provided 
the  transaction  was  an  honest  one  on  his  part. 

All  purchasers,  therefore,  desire  to  have  a  warranty  deed  if  they 
can  get  one.  And  a  deed  becomes  a  warranty  deed,  when  clauses 
like  those  which  follow  are  inserted  just  before  the  clause  of 
execution :  — 

"  And  I,  the  said  A  B  (the  grantor),  for  myself,  my  heirs,  execu- 
tors, and  administrators,  do  covenant  with  the  said  C  D  (the  grantee), 
his  heirs  and  assigns,  that  I  am  lawfully  seised  in  fee  of  the  afore- 
granted  premises ;  that  they  are  free  from  all  incumbrances ;  that 
I  have  good  right  to  sell  and  convey  the  same  to  the  said  C  D  as 


THE  USUAL  CLAUSES  IN  DEEDS.  441 

aforesaid ;  and  that  I  will,  and  my  heirs,  executors,  and  adminis- 
trators shall,  warrant  and  defend  the  same  to  the  said  C  D,  his  heirs 
and  assigns  forever,  against  the  lawful  claims  and  demands  of  all 
persons." 

It  will  be  noticed  that  this  paragraph  contains  four  different  agree- 
ments or  warranties,  —  covenants  the  law  calls  them.  The  cases 
are  multitudinous,  and  the  law  excessively  nice,  as  to  their  exact 
meaning  and  operation.  None  of  this  technical  learning  is  it  worth 
while  to  spread  before  the  general  reader.  But  the  general  purpose 
and  effect  of  all  of  them  together  should  be  stated.  It  is,  that  if 
"  the  said  C  D,"  that  is,  the  grantee,  or  his  heirs  or  assigns,  are 
turned  out  of  that  estate  (ousted  or  evicted,  the  law  says),  on  the 
ground  that  the  grantor  had  no  title,  or  an  incumbered  title,  and 
could  not  convey  any  good  and  clear  title,  he  or  they  may  fall  back 
on  the  grantor  or  his  heirs,  and  demand  damages  for  the  loss  of  the 
land. 

It  is  a  question  how  much  damage  a  grantee  thus  ousted  shall  re- 
cover. In  most  of  our  States,  it  seems  to  be  the  money  paid  for  it, 
with  interest  (deducting  rents  and  profits),  and  the  legal  costs  and 
charges  (not  including  counsel  fees)  for  defending  against  the  suit 
^'aich  has  ousted  him  from  the  land,  and  no  more.  But  in  other 
States,  as  generally  in  New  England,  the  party  ousted  recovers  the 
actual  value  of  the  land,  with  his  improvements,  which  he  loses  by 
the  defect  of  the  grantor's  title ;  although  this  may  be  much  more 
than  he  paid  for  it.  It  is  not,  however,  settled  uniformly  what  the 
measure  of  damages  is. 

In  forms  of  deeds  there  is  usually  a  blank  of  a  few  lines  left  after 
the  word  "  incumbrances ;  "  and  this  is  intended  for  the  insertion 
of  any  mortgage,  or  other  incumbrance,  which  may  exist;  thus, 
"  excepting  a  mortgage  to,  <fcc.,  dated,  &c.,  to  secure  the  sum  of, 
«fcc."  Or,  "  excepting  a  right  in  the  owners  of  the  adjoining  land 
to  have  and  maintain  a  drain  running,  &c." 

Sometimes  quitclaim  deeds  are  made  with  this  warranty  :  "  And 
I  will,  and  my  heirs,  &c.,  shall,  warrant  and  defend,  &c.,  to  the  said 
C  D,  &c.,  against  all  claims  and  demands  of  myself,  or  of  any  persons 
deriving  title  by  or  through  me."  Such  a  warranty  will  hold  the 
grantor  and  his  heirs  liable  for  any  incumbrance  made  or  suffered 
l»y  him,  but  not  for  any  other. 


442  DEEDS  CONVEYING  LAND. 

As  the  usual  covenants  of  a  warranty  deed  are  made  with  the 
grantee,  "  his  heirs  and  assigns,"  if  such  grantee  conveys  the  land 
only  by  grant  and  quitclaim,  without  warranty,  his  grantee  takes  the 
benefit  of  all  the  previous  warranties  to  which  this  last  grantor  was 
entitled.  Thus,  A  sells  with  warranty  to  B  ;  B  quitclaims  to  C ; 
C  is  ousted  by  D,  who  proves  that  he  has  a  better  title  than  A. 
C  cannot  sue  B  because  he  got  nd  warranty  from  B  ;  but  he  can  sue 
A  on  A's  warranty  to  B,  which  was  transferred  to  C. 

Sometimes  estates  are  conveyed  on  condition ;  but  this  is  a  very 
catching  thing,  and  nobody  should  ever  take  such  a  deed  if  he  can 
help  it.  It  is  hardly  safe  to  have  the  word  condition  in  any  deed 
but  a  mortgage.  The  reason  is,  that  if  an  estate  is  conveyed  on 
condition,  and  the  condition  is  broken,  the  estate  is  lost.  Thus  if 
land  is  sold  on  a  certain  street  with  this  clause :  "  And  the  land 
aforesaid  is  sold  on  condition  that  neither  the  grantee,  nor  any  one 
deriving  title  from  or  through  him,  shall  build  within  ten  feet  of 
the  street."  If  any  owner  build  six  inches  over  the  line,  by  mis- 
take, or  extend  his  building  by  an  addition  of  a  foot  or  so  in  any 
part,  the  whole  land,  house  and  all,  might  be  lost  and  forfeited  to 
the  grantor.  And  the  grantor  can  always  secure  the  proper  effect 
of  such  a  condition  by  a  clause  like  this :  "  Provided,  however,  au  ^ 
it  is  agreed,  that  if  the  said  G  D,  &c.,  shall  build,  &c.,  the  said 
A  B,  or  his  heirs  or  assigns,  may  enter  upon  the  land  hereby  con- 
veyed, and  abate  and  remove  any  and  all  buildings  or  parts  of 
buildings,  which  stand  nearer  said  street  than  the  limit  of  ten  feet 
aforesaid;" — or  some  similar  clause,  as  might  be  framed  to  suit 
the  case.  This  would  be  just  as  good  for  the  grantor  and  a  great 
deal  safer  for  the  grantee. 

By  a  rule  of  law  which  originated  in  this  country,  and  is  now  uni- 
versal here,  if  a  married  woman  holds  lands,  the  husband  and  the 
wife,  joining  in  one  deed,  may  convey  them.  In  some  of  our  States 
such  a  deed  is  regulated  by  statutes,  which  of  course  are  to  be 
followed.  And  in  many  of  them  the  wife  now  has  peculiar  powers 
by  statute,  as  stated  in  Chapter  Y.  on  Married  Women.  It  may  bo 
necessary  that  she  should  renounce  or  release  certain  rights,  as  of 
homestead,  <fec.,  under  these  statutes,  if  it  is  intended  that  the 
grantee  should  take  a  clear  title  ;  and  in  such  case  proper  words 


THE  USUAL  CLAUSES  IN  DEEDS.  443 

should  be  inserted.  This  is  now  the  custom,  for  example,  in 
Massachusetts.  She  should  always  release  her  right  of  dower,  un- 
less it  is  intended  that  she  should  preserve  it.  In  some  States  her 
signing  the  deed  with  her  husband  does  not  release  any  thing,  even 
if  it  could  be  proved  that  such  was  her  intention,  unless  the  deed 
contain  words  expressing  her  intention  to  release  or  convey  such  or 
such  a  right  or  interest.  In  most  printed  forms  there  is  a  blank 
left  to  be  filled  up  for  this  purpose.  As  this  differs  in  different 
States  I  shall  refer  to  it  again. 

It  may  be  well  to  remark  that  bargains  are  often  made  for  the 
purchase  and  sale  of  real  property.  If  the  contract  be  oral  only,  it 
h?,s  no  force  in  any  court.  If  it  be  in  writing,  either  party  may,  in 
a  court  of  law,  recover  damages  from  the  other  if  he  refuses  to  per- 
form his  contract.  Or,  in  a  court  of  equity,  he  may  compel  the  other 
to  execute  his  contract.  Not,  however,  if  there  was  fraud  in  the 
contract,  or  oppression,  or  gross  misrepresentation,  or  intentional 
and  important  concealment.  But  a  mere  inadequacy  of  price — all 
things  being  honest  —  will  not  prevent  a  court  of  equity  from  en- 
forcing such  an  agreement. 

Deeds  conveying  land  are  of  vast  variety.  They  not  only  differ 
that  they  may  suit  the  particular  purposes  of  the  parties  and  the 
terms  of  their  bargain,  but  those  used  in  each  section  of  the  coun- 
try differ  somewhat  in  form  from  those  used  in  another;  and 
different  conveyancers  in  the  same  State  prefer  one  form  to  another. 
But  these  differences  are  generally,  if  not  always,  differences  only 
of  form,  and  are  seldom  essential  to  the  meaning  and  effect  of  the 
deeds.  I  give  here  forms  of  all  the  kinds  most  in  use  ;  and  in  such 
variety,  and  so  selected  and  prepared,  that  it  is  believed  that  any 
person  in  any  part  of  this  country  will  be  able  to  find  a  form,  which, 
either  as  it  stands,  or  with  such  alterations  as  can  be  readily  seen  to 
be  required  by  the  use  he  would  make  of  it,  will  be  safe,  and  suffi- 
cient for  his  purpose. 

As  acknowledgments  differ  much  in  form,  enough  of  them  are 
given  to  show  the  kinds  that  are  used.  The  fuller  and  more  particu- 
lar are  the  safer,  although  the  shorter  and  more  general  might  be 
sufficient. 

In  New  England,  a  deed  of  land  is  usually  what  is  called  in  law 
so 


444  DEEDS  CONVEYING  LAND. 

a  Deed  Poll ;  by  which  is  meant  a  deed  of  one  party,  and.  from  him 
to  another.  In  the  other  States  generally,  a  deed  of  lands  is  more 
commonly  in  the  form  of  an  Indenture,  which,  as  has  been  said 
before,  is  an  instrument  between  two  or  more  parties.  The  difference 
between  them  will  be  seen  in  the  forms  given.  The  first  one  is  a 
Deed  Poll.  But  most  of  them  are  Indentures,  as  they  are  most 
frequently  used  ;  although  a  Deed  Poll  that  was  satisfactory  in  other 
respects  would  generally  suffice  to  give  good  title  to  land  any 
where. 

A  form  of  a  Deed  Poll  may  be  converted  into  an  Indenture  by 
changing  the  beginning  of  it  in  the  manner  shown  in  the  forms, 
and,  whenever  the  word  "  grantor  "  comes,  changing  that  into  "  the 
party  of  the  first  .part."  And  a  deed  by  Indenture  is  made  a  Deed 
Poll  by  changes  of  an  opposite  kind.  How  to  make  these  changes 
will  be  seen  by  comparing  the  deeds  of  the  two  kinds  as  herein 
given. 

Another  difference  between  the  Deeds  Poll  in  common  use  in  the 
New-England  States,  and  the  deeds  by  Indenture  in  use  elsewhere, 
must  be  noticed. 

If  the  grantor  by  a  Deed  Poll  has  a  wife,  and  it  is  intended  that 
she  shall  relinquish  her  dower,  she  is  not  mentioned  as  grantor,  but 
in  the  "  In  Testimonium,"  so  called,  which  is  that  part  of  the  deed 
which  begins  with  "  In  witness  (or  in  testimony)  whereof,"  her 
name  is  mentioned,  and  it  must  be  distinctly  said  that  she  signs  the 
deed  in  token  of  her  relinquishment  or  release  of  dower.  This  is 
shown  in  Form  106.  But  where  deeds  by  Indenture  are  used,  there 
she  is  joined  with  her  husband,  and  named  as  grantor;  he  and  she 
being  "  parties  of  the  first  part."  It  is,  however,  not  necessary  that 
any  thing  should  be  said  in  the  deed  about  her  release  of  dower,  or 
homestead ;  but  she  signs  and  seals  the  deed,  and,  in  the  acknowl- 
edgment, express  mention  is  made  of  her  release  of  dower  and 
homestead,  and  also  that  she  was  separately  examined.  Some  of 
the  forms  are  drawn  in  this  way.  Other  forms  are  written  as  if  the 
grantor  was  unmarried,  or  as  if  hie  wife,  if  he  had  one,  did  not 
intend  to  give  up  her  dower.  But  all  these  forms  can  be  readily 
altered,  and  made  to  resemble  either  of  the  forms  accordingly  as 
there  is  or  is  not  a  wife,  or  as,  if  there  be  a  wife,  it  is  intended  that 


FOEMS   OF  DEEDS.  445 

she  should  join  in  the  conveyance  and  relinquish  her  dower,  or 
that  the  husband  should  convey  subject  to  the  wife's  dower.  If  this 
last  be  the  intention,  it  is  not  necessary  to  say  so,  as  the  mere  fact 
that  she  is  not  a  party  to  the  deed  preserves  for  her  her  right  of 
dower. 

(106.) 
A  Deed  Poll  of  Warranty,  in  Common  Use  in  Neiv  England. 

Know  all  Men  by  these  Presents,  That  I,  (the  grantor)  of  (resi- 
dence, town  or  city,  county  and  state),  (occupation),  in  consideration  of  (the 
amount  paid)  to  me  paid  by  (here  name  the  grantee  or  purchaser,  giving  in 
like  manner  his  residence  and  occupation),  the  receipt  whereof  is  hereby  acknowl- 
edged, do  hereby  give,  grant,  bargain,  sell,  and  convey  unto  the  said  (name 
the  grantee,  and  then  describe  the  premises  granted,  minutely  and  accurately)  :  — 

To  Have  and  to  Hold,  the  above-granted  premises,  to  the  said  (name 

the  grantee),  his  (or  hers  or  their)  heirs  and  assigns,  to  his  (or  hers  or  their)  use  and 
behoof  forever.  And  I,  the  said  (name  of  the  grantor),  for  (myself)  and  (my) 
heirs,  executors,  and  administrators,  do  covenant  with  the  said  (name  of  the  grantee)  t 
and  with  his  heirs  and  assigns,  that  I  am  lawfully  seised  in  fee  simple  of  the  afore- 
granted  premises ;  that  they  are  free  from  all  incumbrances  (if  there  be  any  incum- 
brances,  as  a  mortgage  or  lien,  or  right  of  way,  or  drain,  or  air,  or  light,  say  except- 
ing, and  then  describe  the  incumbrance),  that  I  have  good  right  to  sell  and  convey 
the  same  to  the  said  (name  of  the  grantee),  and  his  (or  her)  heirs  and  assigns  for- 
ever as  aforesaid ;  and  that  I  will,  and  my  heirs,  executors,  and  administrators  shall, 
warrant  and  defend  the  same  to  the  said  (name  of  the  grantee),  and  his  heirs  and 
assigns  forever,  against  the  lawful  claims  and  demands  of  all  persons. 

In  Witness  Whereof,  I,  the  said     (name  of  the  grantor),  and     (name  of  his 
wife),  wife  of  said  grantor,  in  token  of  her  release  of  all  right  and  title  of  or  to  dower 
in  the  granted  premises,  have  hereunto  set  our  hands  and  seals  this 
day  of  in  the  year  of  our  Lord  eighteen  hundred  and 

(Seals.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

In  those  States  in  which  a  homestead  law  exists,  the  signature  of 
the  wife,  with  a  clause  like  that  above,  would  not  release  the  home- 
stead. To  effect  this  the  following  clause  should  be  inserted  before 
the  words,  "  In  token  of :  "  — 

"  In  token  of  her  release  to  the  said  (name  of  the  grantee),  of  all  her  right, 

interest,  and  estate  to  or  hi  the  premises  herein  conveyed,  under  the  h'lmestead 
laws  of  this  State ;  and  also,"  &c. 


446  DEEDS  CONVEYING  LAXD. 

Some  conveyancers  think  this  hardly  sufficient,  and  prefer  the 
following  method,  which  would  undoubtedly  be  effectual  in  every 
one  of  these  States.  Insert  before  the  paragraph  beginning  "  ID 
witness  whereof,"  this  paragraph  :  — 

"  And  I,  (name  of  the  wife)  wife  of  the  said  (the  name  of  the  grantor), 

in  consideration  of  one  dollar  to  me  paid  by  the  said          (the  name  of  the  grantee), 
the  receipt  whereof  is  acknowledged,  do  hereby  release  and  assign  to  the  said 
(the  name  of  the  grantee),  and  his  heirs  and  assigns,  all  my  right,  interest,  claim,  and 
estate  in  or  to  the  premises  within  granted,  under  the  homestead  laws  of  this  State 
or  any  other  statutory  provisions  thereof." 

It  is  to  be  remembered  that,  whether  the  deed  be  a  warranty  deed 
like  that  above  given,  or  a  release  or  quitclaim,  or  a  mortgage  deed, 
it  is  equally  necessary  and  proper  that  the  wife  should  release  hei 
homestead  right  and  her  dower,  unless  it  is  intended  that  she  should 
retain  them. 

Below  the  deed  comes  the  acknowledgment. 

Commonwealth  (or  State)  of  (County)  S3.     (Town,  Month,  and  Date.) 

Then  personally  appeared  the  above-named  and  acknowledged  the 

above  instrument  to  be  free  act  and  deed ;  before  me, 

Justice  of  the  Peace. 

(10T. 

Deed  of  Gift  by  Indenture,  without  any  Warranty  whatever. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name, 

residence,  and  occupation  of  the  grantor)  of  the  first  part,  and  (name,  resi- 

dence, and  occupation  of  the  grantee)  of  the  second  part,  witnesseth,  that  the  said 
(the  grantor)  as  well  for  and  in  consideration  of  the  love  and  affection  which  he 
has  and  bears  towards  the  said  (the  grantee)  as  for  the  sum  of  one  dollar, 

lawful  money  of  the  United  States,  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  at  or  before  the  ensealing  and  deliver)7  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  given,  granted,  aliened,  enfeoffed,  released, 
conveyed  and  confirmed,  and  by  these  presents  does  give,  grant,  alien,  enfeoflf, 
release,  convey  and  confirm,  unto  the  said  party  of  the  second  and  his  heirs  and 
assigns  forever,  all  (here  describe  carefully  the  land  or  premises  granted,  by  metes  and 
bounds,  and  dimensions,  contents  or  quantity,  or  boundary  marks  or  monuments,  and 
refer  by  volume  and  page  to  the  deed  of  the  land  to  the  grantor,  under  which  he  holds  ii) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging  or  hi  any  wise  appertaining,  and  the  reversion  and 


FORMS   OF  DEEDS.  447 

reversions,  remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also, 
all  the  estate,  right,  title,  interest,  property,  possession,  claim  and 

demand  whatsoever,  of  the  said  party  of  the  first  part,  of,  in  and  to  the  same,  and 
every  part  and  parcel  thereof,  with  their  and  every  of  their  appurtenances.  To 
have  and  to  hold  the  said  hereby  granted  and  described  premises  and  every  part 
and  parcel  thereof  with  the  appurtenances  unto  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns,  to  his  and  their  only  proper  use,  benefit  and  behoof 
forever. 

In  Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

(Signature.')     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of 


(108.) 
Deed  of  Bargain  and  Sale  without  any  Warranty. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name, 

residence,  and  occupation  of  the  grantor)  of  the  first  part,  and  (name,  resi- 

dence and  occupation  of  the  grantee)  of  the  second  part,  witnesseth,  that  the  said 
party  of  the  first  part,  for  and  in  consideration  of  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  him  in  hand  paid,  by  the  said  party  of 
the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold,  aliened,  re- 
mised, released,  conveyed  and  confirmed,  and  by  these  presents  does  grant,  bargain, 
sell,  alien,  remise,  release,  convey  and  confirm,  unto  the  said  party  of  the  second 
part,  and  to  his  and  assigns  forever,  all  (here  describe  carefully  the  land  or 

premises  granted,  as  directed  in  Form  107) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion  and  rever- 
sions, remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also  all 
the  estate,  right,  title,  interest,  property,  possession,  claim  and  demand  whatsoever, 
as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  or  to  the  above- 
described  premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances.  To 
have  and  to  hold  all  and  singular  the  above  mentioned  and  described  premises, 
together  with  the  appurtenances,  unto  the  said  party  of  the  second  part,  and  his 
heirs  and  assigns  forever. 

In  Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of 


448  DEEDS   CONVEYING  LAND. 

STATE  of  ") 

>-ss. 
COUNTY  OF  ) 

On  this  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came  (the  name 

of  the  party  of  the  first  part,  who  is  the  grantor)  who  is  known  by  me  to  be  the  indi- 
vidual described,  and  who  executed  the  foregoing  instrument,  and  then  and  there 
acknowledged  that  he  executed  the  same  as  and  for  his  own  deed. 

(Signature.') 

(109.) 

Quitclaim  Deed  without  any  Warranty. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name, 

residence,  and  occupation,  of  the  grantor)  of  the  first  part,  and  (name,  resi- 

dence, and  occupation  of  the  grantee)  of  the  second  part,  witnesseth,  that  the  said 
party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States  of  America,  to  him  in  hand  paid,  by  the  said 
party  of  the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  has  remised,  released  and  quitclaimed, 
and  by  these  presents  does  remise,  release  and  quitclaim,  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  forever,  all  (here  describe  carefully  the  land 
or  premises  granted,  as  directed  in  Form  107) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion  and  rever- 
sions, remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also  all 
the  estate,  right,  title,  interest,  property,  possession,  claim  and  demand  whatsoever, 
as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  or  to  the  above- 
described  premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances.  To 
have  and  to  hold  all  and  singular  the  above  mentioned  and  described  premises, 
together  with  the  appurtenances,  unto  the  said  party  of  the  second  part,  and  his 
heirs  and  assigns  forever. 

In  Witness  Whereofj  The  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

STATE  OF  ^ 

[•fift. 

COUXTY  OF  ) 

On  this  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  ;ame  (the  name 


FOBMS  OP  DEEDS.  449 

of  the  grantor)  who  is  known  by  me  to  be  the  individual  described,  and  who  ex- 
ecuted the  foregoing  instrument,  and  acknowledged  that  he  executed  the  same. 

(Signature, .) 


(110.) 

Deed  Poll  of  Release  and  Conveyance,  Short  Form. 

Know  all  Men  by  these  Presents,  That  I  (the  name  ofreleasor) 

of  the  County  of  and  State  of  for  and  in 

consideration  of  one  dollar,  to  me  in  hand  paid,  and  for  other  good  and  valuable 
considerations,  the  receipt  whereof  is  hereby  confessed,  do  hereby  grant,  bargain, 
remise,  convey,  release  and  quitclaim  unto  (the  name  of  the  releasee)  of  the 

County  of  and  State  of  all  the  right,  title, 

interest,  claim  or  demand  whatsoever,  I  may  have  acquired  in,  through  or  by  a  cer- 
tain indenture  or  deed,  bearing  date  the  day  of 
A.D.  18            and  recorded  in  the                         office  of  County,  and 
State  of                          in  book                           of                          page 
to  the  premises  therein  described,  to  wit  (here  describe  carefully  the  land  or  prem- 
ises granted,  as  directed  in  Form  107) 

"Witness  my  hand  and  seal  this  day  of 

A.D.  18 

(Signature.)     (Seal.) 


STATE  OP 

'  ss. 

COCXTT. 


XTT.       ) 


I,  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereby  certify,  that  (the  name  of  the  releasor)  personally  known  to  me  as 

the  same  person  whose  name  is  subscribed  to  the  foregoing  deed,  appeared  before 
me  this  day,  in  person,  and  acknowledged  that  he  signed,  sealed  and  delivered  the 
said  instrument  of  writing  as  his  own  free  and  voluntary  act,  for  the  uses  and  pur- 
poses therein  set  forth. 

Given  under  my  hand  and  seal,  this  day  of 

A.D.  18 

(Signature.)     (Seal.) 

(111.) 
Deed,  with  Special  Warranty  against  the  Grantor  only. 

This  Indenture,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  sixty-  between  (tite 

name  of  the  grantor)  and  (name  of  the  wife  of  grantor)  wife  of  the  said 

(name  of  the  grants)  of  the  County  of  and  State  of 


450  DEEDS  COiSrVEYIXG  LAJTD. 

parties  of  the  first  part,  and  (name  and  residence  of  the  grantee)  party  of  the 

second  part :  Witnesseth,  that  the  said  parties  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of  to  them  paid  by  the  said  party  of  the 
second  part,  the  receipt  of  which  is  hereby  acknowledged,  do  by  these  presents, 
^rant,  bargain,  and  sell  unto  the  said  party  of  the  second  part,  and  his  heirs  and 
assigns,  the  following-described  tract  or  parcel  of  land,  situate  in  (here  describe 
carefully  the  lanz  or  premises  granted,  as  directed  in  Form  107) 

Together  rith  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof;  and  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  parties  of  the  first  part,  of,  in,  or  to 
the  above-described  premises,  and  every  part  and  parcel  thereof,  with  the  appurte- 
nances .  To  have  and  to  hold  all  and  singular  the  above  mentioned  and  described 
premises,  together  with  the  appurtenances,  unto  the  said  party  of  the  second  part 
and  his  heirs  and  assigns  forever. 

And  the  said  the  said  parties  of  the  first  part,  hereby 

expressly  waive,  release,  and  relinquish  unto  the  said  party  of  the  second  part,  and 
his  heirs,  executors,  administrators,  and  assigns,  all  right,  title,  claim,  interest,  and 
benefit  whatever,  in  and  to  the  above-described  premises,  and  each  and  every  part 
thereof,  which  is  given  by  or  results  from  all  laws  of  this  State  pertaining  to  the 
exemption  of  homesteads. 

And  the  said  parties  of  the  first  part,  for  themselves  and  their  heirs,  executors, 
and  administrators,  do  hereby  covenant,  promise,  and  agree  to  and  with  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  that  the  said  premises  against  the 
claim  of  all  persons,  claiming  or  to  claim  by,  through  or  under  him  only,  he  will 
forever  warrant  and  defend. 

In  Testimony  "Whereof^  The  said  parties  of  the  first  part  have  hereunto 
set  their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  grantor.)  (Seal) 

(Signature  of  wife  of  grantor.)     (Seal.) 

Sealed  and  Delivered  in  Presence  of 


STATE  OF 

'  88. 
COUXTY. 


NTT.    ) 


I,  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereoy  certify  that  (name  of  the  grantor)  personally  known  to  me  as  the 

eame  person  whose  name  is  subscribed  to  the  annexed  deed,  appeared  before  me 
this  day  hi  person,  and  acknowledged  that  he  signed,  sealed,  and  delivered  the 
said  instrument  of  writing  as  his  free  and  voluntary  act,  for  the  uses  and  purposes 
therein  set  forth. 

And  the  said  (name  of  the  grantor's  wife)  wife  of  the  said  (name  of 

the  grantor)  having  been  by  me  examined,  separate  and  apart  and  out  of  the  hear- 


FOKMS  OF  DEEDS.  451 

ing  of  her  liusband,  and  the  contents  and  meaning  of  the  said  instrument  of 
writing  having  been  by  me  fully  made  known  and  explained  to  her,  and  she 
also  by  me  being  fully  informed  of  her  right  under  the  Homestead  Laws  of  this 
State,  acknowledged  that  she  had  freely  and  voluntarily  executed  the  same,  and 
relinquished  her  dower  to  the  lands  and  tenements  therein  mentioned,  and  also 
all  her  rights  and  advantages  under  and  by  virtue  of  all  laws  of  this  State  relating 
to  the  exemption  of  homesteads,  without  compulsion  of  her  said  husband,  and  that 
she  does  not  wish  to  retract  the  same. 

Given  under  my  hand  and  seal,  this  day  of  A.D.  186 

(Signature.*)     (Seal.) 


(112.) 
Quit-Claim  Deed.  —  Long  Form  Homestead  Waiver. 

This  Indenture,  Made  the  day  of  in  the  yeai 

of  our  Lord  one  thousand  eight  hundred  and  sixty-  between  (name, 

residence,  and  occupation  of  the  grantor,  and  name  of  the  grantor's  wife)  parties  of 
the  first  part,  and  (name,  residence,  and  occupation  of  the  grantee*)  party  of 

the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  dollars  in  hand  paid  by  the  said  party  of  the  second 

part,  the  receipt  whereof  is  hereby  acknowledged,  and  the  said  party  of  the 
second  part,  forever  released  and  discharged  therefrom,  have  remised,  released, 
sold,  conveyed,  and  quit  claimed,  and  by  these  presents  do  remise,  release,  sell, 
convey,  and  quit  claim,  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  all  the  right,  title,  interest,  claim,  and  demand  which  the  said  party  of  the 
first  part  have  in  and  to  the  following-described  lot  ,  piece  ,  or  parcel  of  land, 
to  wit  (here  describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107) 

To  Have  and  to  Hold  the  Same,  Together  with  all  and  singular  the 
appurtenances  and  privileges  thereunto  belonging,  or  in  any  wise  thereunto  apper- 
taining ;  and  all  the  estate,  right,  title,  interest,  and  claim  whatever  of  the  said 
party  of  the  first  part,  either  in  law  or  equity,  to  the  only  proper  use,  benefit,  and 
behoof  of  the  said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

And  the  said  parties  of  the  first  part  hereby  expressly  waive,  release,  and 
relinquish  unto  the  said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors, and  assigns,  all  right,  title,  claim,  interest,  and  benefit  whatever,  in  and  to  the 
above-described  premises,  and  each  and  every  part  thereof,  which  is  given  by  or 
results  from  all  laws  of  this  State  pertaining  to  the  exemption  of  homesteads. 

And  the  said  parties  of  the  first  part,  for  themselves  and  their  heirs,  executors, 
and  administrators,  do  covenant,  promise,  and  agree,  to  and  with  the  said  party 
of  the  second  part,  their  heirs,  executors,  administrators,  and  assigns,  that  they 
have  not  made,  done,  committed,  executed,  or  suffered  any  act  or  acts,  thing  or 


452  DEEDS  CONVEYING  LAND. 

things,  whatsoever,  whereby,  or  by  means  whereof,  the  above  mentioned  and 
described  premises,  or  any  part  or  parcel  thereof,  now  are,  or  at  any  time  here- 
after shall  or  may  be,  impeached,  charged,  or  incumbered,  in  any  way  or  manner 
•whatsoever. 

In  Witness  Whereof,  The  said  party  of  the  first  part  hereunto  set  their 
hands  and  seals  the  day  and  year  above  written. 

(Signature  of  grantor.')  (Seal.) 

(Signature  of  wife  of  grantor.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of 


STATE  OF 

'   83. 

COUNTY. 


•I 

NTY.    ) 


I  in  and  for  said  county,  and  the  State  aforesaid,  do 

hereby  certify,  that  (name  of  the  grantor)  being  personally  known  to  me  as 

the  same  person  whose  name  is  subscribed  to  the  foregoing  instrument  of  writing, 
appeared  before  me  this  day,  in  person,  and  acknowledged  that  he  signed,  sealed, 
and  delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for  the 
uses  and  purposes  therein  set  forth. 

And  the  said  (name  oftJte  wife)  wife  of  the  said  (name  of  the  grantor) 

having  been  by  me  examined  separate  and  apart,  and  out  of  the  hearing  of  her 
husband,  and  the  contents  and  meaning  of  the  said  instrument  of  writing  having 
been  by  me  fully  made  known  and  explained  to  her,  and  she  also  by  me  being 
fully  informed  of  her  rights  under  the  Homestead  Laws  of  this  State,  acknowl- 
edged that  she  had  freely  and  voluntarily  executed  the  same,  and  relinquished 
her  dower  to  the  lands  and  tenements  therein  mentioned,  and  also  all  her  rights 
and  advantages  under  and  by  virtue  of  all  laws  of  this  State  relating  to  the 
exemption  of  homesteads,  without  the  compulsion  of  her  said  husband,  and  that 
she  does  not  wish  to  retract  the  same. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D,  186     . 

(Signature.)     (Seal.) 

(113.) 

Deed,  with  Covenant  against  Grantor,  without  Release  of  Home- 
stead or  Doiver. 

This  Indenture,  Made  the  day  of  in  the  year 

one  thousand  eight  hundred  and  between  (name  of  the  grantor) 

(name  of  the  grantee)  of  the  second  part,  witnesscth, 
That  the  said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States  of  America,  to  him  in  hand 
paid,  by  the  said  party  of  the  second  part,  at  or  before  the  ensealing  and  delivery 
of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  ha  granted,  bar- 


FORMS  OF  DEEDS.  453 

gained,  sold,  aliened,  remised,  released,  conveyed,  and  confirmed,  and  by  these 
presents  do  grant,  bargain,  sell,  alien,  remise,  release,  convey,  and  confirm,  unto 
the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns  forever,  all  (here 
describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107) 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereunto  belonging  or  hi  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof.  And  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  hi  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  or  to  the 
above-described  premises,  and  every  part  and  parcel  thereof,  with  the  appurte- 
nances. To  have  and  to  hold  all  and  singular  the  above  mentioned  and  described 
premises,  together  with  the  appurtenances,  unto  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns  forever. 

And  the  said  (name  of  the  grantor)  for  himself  and  his  heirs,  executors, 

and  administrators,  does  hereby  covenant,  promise,  and  agree  to  and  with  the  said 
party  of  the  second  part,  and  his  heirs  and  assigns,  that  he  has  not  made,  done,  com- 
mitted, executed,  or  suffered  any  act  or  acts,  thing  or  things  whatsoever,  whereby 
or  by  means  whereof,  the  above  mentioned  and  described  premises,  or  any  part  or 
parcel  thereof,  now  are,  or  at  any  tune  hereafter  shall  or  may  be,  impeached, 
charged,  or  incumbered  in  any  manner  or  way  whatsoever. 

In  Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set  his 

hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

STATE  or  ,  ) 

>ss. 

COUXTY.    ) 

I  in  and  for  said  county,  and  the  State  aforesaid,  do 

hereby  certify,  that  (name  of  the  grantor)  being  personally  known  to  me  as 

the  same  person  whose  name  is  subscribed  to  the  foregoing  instrument  of  writing, 
appeared  before  me  this  day,  in  person,  and  acknowledged  that  he  signed, 
sealed,  and  delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act, 
for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D.  186    , 

(Signature.)     (Seal.) 

(114.) 

Separate  Helinquishmcnt  of  Homestead  and  Dower  in  Land  sold 
under  Execution. 

Know  all  Men  by  these  Presents,  That  we  (name  and  residence 
of  the  debtor)  and  (name  of  his  wife)  wife  of  the  said 

of  the  County  of  and  State  of  ,  parties  of 


454  DEEDS  CONVEYING  LAND. 

the  first  pait,  for  the  sum  of  one  dollar  to  us  paid  by  (name  of  tJie  purchaser) 

of  the  County  of  and  State  of  party  of  the 

second  part,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby  agree  and  con- 
sent to  let  the  said  party  of  the  second  part  levy  and  sell,  under  a  certain  execution, 
in  favor  of  them,  the  said  party  of  the  second  part,  and  against  (name  of  the 

creditor,  or  the  defendant  in  the  suit  in  ichich  the  execution  issued)  now  in  the  hands 
of  the  sheriff  of  the  County  of  and  State  of  , 

and  dated  the  day  of  A.D.  186     ,  the  following-described 

tract    of  land,  situated  in  the  County  of  and  State  of  , 

to  wit  (here  describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107), 
(and  being  the  same  land  heretofore  held,  used,  and  occupied  by  the  said  parties 
of  the  first  part,  as  a  homestead)  hereby  waiving,  releasing,  relinquishing,  and 
surrendering  to  and  in  favor  of  said  party  of  the  second  part,  under  the  said  levy 
and  sale  on  said  execution,  all  the  right,  title,  claim,  interest,  and  benefit  which 
we,  the  said  parties  of  the  first  part,  and  each  of  us,  have  in  and  to  said  premises, 
by  virtue  of  any  and  all  homestead-exemption  laws,  now  or  heretofore  in  force  in 
the  State  of  ,  and  more  especially  "  An  Act  to  exempt  Homesteads 

from  Sale  on  Execution,"  now  in  force  in  the  State  of  . 

"Witness  our  hands  and  seals  this  the  day  of  A.D.  186    . 

(Signature.)     (Seal.) 
(Signature.)     (Seal.) 


STATE  OF 

'   88. 


I  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereby  certify  that  personally  known  to  me  as  the 

same  persons  whose  names  are  subscribed  to  the  annexed  instrument,  appeared 
before  me  this  day  in  person,  and  acknowledged  that  they  signed,  scaled,  and  de- 
livered the  said  instrument  of  writing .  as  their  free  and  voluntary  act,  for  the  uses 
and  purposes  therein  set  forth. 

And  the  said  (the  name  of  the  wife)  wife  of  the  said 

having  been  by  me  examined,  separate  and  apart,  and  out  of  the  hearing  of  her 
husband,  and  the  contents  and  meaning  of  the  said  instrument  of  writing  having 
been  by  me  fully  made  known  and  explained  to  her,  and  she  also  by  me  being  fully 
informed  of  her  rights  under  the  Homestead  Laws  of  this  State,  acknowledged  that 
she  had  freely  and  voluntarily  executed  the  same,  and  relinquished  her  dower  to 
the  lands  and  tenements  therein  mentioned,  without  compulsion  of  her  said  hus- 
band, and  that  she  does  not  wish  to  retract  the  same. 

Given  urder  my  hand  and  seal  this  day  of  A.D.  186    . 

(Signature.)     (Seal.) 


FORMS  OF  DEEDS.  455 


(115.) 

Full  Warranty  Deed,  by  Indenture,  without  Release  of  Home- 
stead or  Doiver. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name, 

residence,  and  occupation  of  the  grantor)  party  of  the  first  part,  and  (name, 

residence,  and  occupation  of  the  grantee)  party  of  the  second  part,  witnesseth,  that 
the  said  party  of  the  first  part,  for  and  hi  consideration  of  the  sum  of 
lawful  money  of  the  United  States,  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  and  the  said  party  of  the  second  part,  and  his 
heirs,  executors,  and  administrators,  forever  released  and  discharged  from  the 
same,  by  these  presents,  has  granted,  bargained,  sold,  aliened,  remised,  released, 
conveyed  and  confirmed,  and  by  these  presents  does  grant,  bargain,  sell,  alien, 
remise,  release,  convey  and  confirm,  unto  the  said  party  of  the  second  part,  and 
to  his  heirs  and  assigns  forever,  all  (here  describe  carefully  the  land  or  premises 
granted,  as  directed  in  Form  107.) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim  and  demand  what- 
soever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and 
to  the  same,  and  every  part  and  parcel  thereof  with  the  appurtenances :  To  have 
and  to  hold  the  above  granted,  bargained  and  described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to  his 
and  their  own  proper  use,  benefit,  and  behoof  forever. 

And  the  said  (name  of  the  grantor)  for  himself  and  his  heirs,  executors, 

and  administrators,  does  covenant,  grant  and  agree  to  and  with  the  said  party  of 
the  second  part,  and  his  heirs  and  assigns,  that  the  said  (name  of  the  grantor) 

at  the  time  of  the  sealing  and  delivery  of  these  presents,  is  lawfully  seised,  in  his 
own  right,  of  a  good,  absolute,  and  indefeasible  estate  of  inheritance,  in  fee  simple, 
of,  and  in  all  and  singular  the  above  granted  and  described  premises,  with  the 
appurtenances  thereunto  belonging,  and  has  good  right,  full  power,  and  lawful 
authority  to  grant,  bargain,  sell,  and  convey  the  same,  in  manner  aforesaid :  And 
that  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  shall  and  may  at 
all  times  hereafter,  peaceably  and  quietly,  have,  hold,  use,  occupy,  possess  and 
enjoy  the  above-granted  premises,  and  every  part  and  parcel  thereof,  with  the 
appurtenances,  without  any  let,  suit,  trouble,  molestation,  eviction,  or  disturbance 
of  the  said  party  of  the  first  part,  or  his  heirs  or  assigns,  or  of  any  other  person  or 
persons  lawfully  claiming  or  to  claim  the  same :  and  that  the  same  now  are  free, 
clear,  discharged  and  unincumbered,  of  and  from  all  former  and  other  grants, 


456  DEEDS  CONVEYING   LAND 

titles,  charges,  estates,  judgments,  taxes,  assessments  and  incrmbrances  of  what 
nature  or  kind  soever. 

And  also  that  the  said  party  of  the  first  part,  and  his  heirs,  and  all  and  every 
person,  or  persons  whomsoever,  lawfully  or  equitably  deriving  any  estate,  right, 
title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted  premises,  by,  from,  under, 
or  in  trust  for  him  or  them,  shall  and  will,  at  any  tune  or  times  hereafter,  upon 
the  reasonable  request,  and  at  the  proper  costs  and  charges  in  the  law,  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  make,  do,  and  execute,  or  cause  to 
be  made,  done,  and  executed,  all  and  every  such  further  and  other  lawful  and 
reasonable  acts,  conveyances  and  assurances  in  the  law,  for  the  better  and  more 
effectually  vesting  and  confirming  the  premises  hereby  granted  or  so  intended  to 
be,  in  and  to  the  said  party  of  the  second  part,  his  heirs  and  assigns,  forever,  as 
by  the  said  party  of  the  second  part,  his  heirs  or  assigns,  or  his  or  their  counsel 
learned  in  the  law  shall  be  reasonably  advised  or  required  :  And  the  said  party 
of  the  first  part,  for  himself  and  his  heirs,  the  above-described  and  hereby  granted 
and  released  premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  against  the  said 
party  of  the  first  part,  and  his  heirs,  and  against  all  and  every  person  and  persons 
whomsoever,  lawfully  claiming  or  to  claim  the  same,  shall  and  will  warrant  and 
by  these  presents  forever  defend. 

In  "Witness  Whereof,  the  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

STATE  OF  ,  } 

[-88. 

COUNTY  OF  .  ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came  (the  name 

of  the  grantor),  who  is  known  to  me  to  be  the  individual  described  in,  and  who  exe- 
cuted, the  foregoing  instrument,  and  acknowledged  that  he  executed  the  same,  as 
his  own  free  act  and  deed. 

(Signature.) 

(116.) 

Warranty  Deed,  Short  Form,  with  Release  of  Homestead  and 

Dower. 

This  Indenture,  Made  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

between  (name,  residence,  and  occupation  of  grantor,  and  name  of  his  wife)  of 

the  first  port,  an^  (name,  residence,  and  occupation  of  grantee)  of  the  second 


FOEMS  OF  DEEDS.  457 

part,  witnesseth,  that  the  said  party  of  the  first  part,  in  consideration  of  the  sum 
of  dollars  in  hand  paid  (the  receipt  whereof  is  hereby  acknowledged), 

have  granted,  bargained  and  sold,  and  by  these  presents  do  grant,  bargain,  and 
sell,  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  all  that  piece  or 
parcel  of  land  situate  in  in  the  County  of  and  State  of 

to  wit  (here  describe  carefully  the  land  or  premises  granted,  as 
directed  in  Form  107.) 

Together  with  the  appurtenances  thereunto  belonging ;  and  all  the  estate, 
right,  title,  interest,  claim,  and  demand  of  the  said  party  of  the  first  part  herein. 

And  the  said  (names  of  grantor  and  of  his  wife)  parties  of  the  first  part, 

hereby  expressly  waive,  release,  relinquish,  and  convey  unto  the  said  party  of  the 
second  part,  and  his  heirs,  executors,  administrators  and  assigns,  all  right,  title, 
claim,  interest  and  benefit  whatsoever,  in  and  to  the  above-described  premises,  and 
each  and  every  part  thereof,  which  is  given  by  or  results  from  any  and  all  laws  of 
this  State,  pertaining  to  the  exemption  of  homesteads. 

And  the  said  (names  of  grantor  and  of  his  wife)  for  themselves  and  their 

heirs,  executors,  and  administrators,  do  covenant,  grant,  bargain,  and  agree  to  and 
with  the  said  party  of  the  second  part,  and  with  his  heirs  and  assigns,  that  the 
above-bargained  premises  hi  the  quiet  and  peaceable  possession  of  the  said  party 
of  the  second  part,  and  his  heirs  and  assigns,  the  said  party  of  the  first  part  shall 
and  will  warrant  and  forever  defend. 

In  Witness  VVliereof,  The  said  parties  of  the  first  part  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  grantor.)  (Seal.) 

(Signature  of  wife  of  grantor.)     (Seal,) 
Signed,  Sealed  and  Delivered  in  Presence  of 


STATE  OF  ^ 

>  83. 
COUXTY.) 

I,  in  and  for  said  county,  do  hereby  certify  that 

(name  of  grantor)  who  is  personally  known  to  me  as  the  same  person 

whose  name  is  subscribed  to  the  annexed  deed,  appeared  before  me  this  day,  hi 

person,  and  acknowledged  that  he  signed,  sealed,  and  delivered  the  said  instrument 

of  writing,  as  his  free  and  voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 

And  the  said  (name  of  the  wife  of  grantor)  wife  of  the  said  (name 

of  the  grantor)  having  been  by  me  examined  separate  and  apart,  and  j>ut  of  the 
hearing  of  her  husband,  and  the  contents  and  meaning  of  the  said  instrument  of 
writing  been  by  me  fully  made  known  and  explained  to  her,  and  she  also  by  me 
having  been  fully  informed  of  her  rights,  under  the  Homestead  Laws  of  this  Smte, 
acknowledged  that  she  had  freely  and  voluntarily  executed  the  same,  and  relin- 
quished her  dower  to  the  lands  and  tenements  therein  mentioned,  and  also  all  fcer 
rights  and  advantages,  under  and  by  virtue  of  any  and  all  laws  of  this  State 


458  DEEDS   CONVEYING  LAND. 

relating  to  the  exemption  of  homesteads,  without  compulsion  of  her  said  husband, 
»nd  that  she  does  not  wish  to  retract  the  same. 

Given  under  my  hand  and  official  seal,  this  day  of 

A..D.  186     . 

(Signature.)     (Seal.) 

(117.) 

Warranty    Deed,    with    Covenant    against    Nuisances,  without 
Release  of  Homestead  or  Dower. 

Tliis  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name, 

residence  and  occupation  of  the  grantor)  party  of  the  first  part,  and  (name, 

residence  and  occupation  of  the  grantee)  party  of  the  second  part,  witnesseth,  that  the 
said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of  lawful 

money  of  the  United  States,  to  him  in  hand  paid  by  the  said  party  of  the  second 
part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  and  the  said  party  of  the  second  part,  his  heirs,  executors, 
and  administrators,  forever  released  and  discharged  from  the  same,  by  these  pres- 
ents, has  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed  and  con- 
firmed, and  by  these  presents  does  grant,  bargain,  sell,  alien,  remise,  release,  con- 
vey and  confirm,  unto  the  said  party  of  the  second  part,  and  to  his  heirs  and 
assigns  forever,  all  (here  describe  carefully  the  land  or  premises  granted,  as  directed 
in  Form  107.) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues  and  profits  thereof:  And  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim  and  demand  what- 
soever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and  to 
the  same,  and  every  part  and  parcel  thereof,  with  the  appurtenances :  to  have  and 
to  hold  the  above  granted,  bargained  and  described  premises,  with  the  appurte- 
nances, unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to  his  and 
their  own  proper  use,  benefit,  and  behoof  forever. 

And  the  said  party  of  the  first  part,  for  himself  and  for  his  heirs,  executors  and 
administrators,  does  hereby  covenant,  grant  and  agree  to  and  with  the  said  party 
of  the  second  part,  and  his  heirs  and  assigns,  that  the  said  party  of  the  first  part, 
at  the  time  of  the  sealing  and  delivery  of  these  presents,  is  lawfully  seised  in  his 
own  right  of  a  good,  absolute  and  indefeasible  estate  of  inheritance,  in  fee  simple, 
of,  and  in  all  and  singular  the  above-granted  and  described  premises,  with  the 
appurtenances  to  them  belonging ;  and  has  good  right,  full  power,  and  lawful  au- 
thority, to  grant,  bargain,  sell,  and  convey  the  same,  in  manner  aforesaid. 

And  that  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  shall  and 
may  at  all  times  hereafter,  peaceably  and  quietly  have,  hold,  use,  occupy,  possess, 


FOEMS  OF  DEEDS.  459 

and  enjoy  the  above-granted  premises,  and  every  part  and  parcel  thereof,  with  the 
appurtenances,  without  any  let,  suit,  trouble,  molestation,  eviction,  or  disturbance 
of  the  said  party  of  the  first  part,  or  his  heirs  or  assigns,  or  of  any  other  person  or 
persons  lawfully  claiming  or  to  claim  the  same  :  And  that  the  same  now  are  free, 
clear,  discharged,  and  unincumbered,  of  and  from  all  former  and  other  grants,  titles, 
charges,  estates,  judgments,  taxes,  assessments,  and  incumbrances  of  what  nature 
or  kind  soever. 

And  also  that  the  said  party  of  the  first  part,  and  his  heirs,  and  all  and  every 
person  or  persons  whomsoever,  lawfully  or  equitably  deriving  any  estate,  right, 
title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted  premises,  by,  from,  under  or 
in  trust  for  him  or  them,  shall  and  will,  at  any  time  or  times  hereafter,  upon  the 
reasonable  request,  and  at  the  proper  costs  and  charges  in  the  law,  of  tie  said 
party  of  the  second  part,  his  heirs  and  assigns,  make,  do,  and  execute,  or  cause  to 
be  made,  done,  and  executed,  all  and  every  such  further  and  other  lawful  and  rea- 
sonable acts,  conveyances,  and  assurances  in  the  law,  for  the  better  and  more  effect- 
ually vesting  and  confirming  the  premises  hereby  granted,  or  so  intended  to  be,  in 
and  to  the  said  party  of  the  second  part,  his  heirs  and  assigns,  forever,  as  by  the 
said  party  of  the  second  part,  his  heirs  or  assigns,  or  his  or  their  counsel  learned 
in  the  law,  shall  be  reasonably  advised  or  required :  And  the  said  party  of  the 
first  part,  for  himself  and  for  his  heirs,  the  above-described  and  hereby  granted  and 
released  premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  against  the  said  party 
of  the  first  part,  and  his  heirs,  and  against  all  and  every  person  and  persons  whom- 
soever, lawfully  claiming  or  to  claim  the  same,  shall  and  will  warrant  and  by  these 
presents  forever  defend. 

And  the  said  party  of  the  second  part,  for  himself  and  for  his  heirs  and  assigns 
does  hereby  covenant  to  and  with  the  said  party  of  the  first  part,  and  with  his  heirs, 
executors,  and  administrators,  that  neither  the  said  party  of  the  second  part,  nor 
his  heirs  or  assigns,  shall  or  will  at  any  tune  hereafter  erect  or  permit  upon  any 
part  of  the  said  lot,  any  slaughter-house,  smith-shop,  forge,  furnace,  steam-engine, 
brass-foundry,  nail  or  other  iron  factory,  or  any  manufactory  of  gunpowder,  glue^ 
varnish,  vitriol,  ink,  or  turpentine,  or  for  the  tanning,  dressing,  or  preparing  skins> 
hides,  or  leather,  or  any  brewery,  distillery,  livery-stable,  or  buildings  for  any  nox- 
ious or  dangerous  trade  or  business. 

In  "Witness  Whereof,  the  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  Presence  of  (Signature.)    (Seal) 

STATE  OF  ) 

i-ss. 

COUNTY  OP  j 

On  this  day  of  *&  &e  7ear  one  thousand 

eight  hundred  and  before  me  personally  came  (the  name 

31 


460  DEEDS  CONVEYING  LAND. 

of  the  party  of  (he  first  part,  who  is  the  grantor)  who  is  known  by  me  to  be  the  indi- 
vidual described,  and  who  executed  the  foregoing  instrument,  and  then  and  there 
acknowledged  that  he  executed  the  same  as  and  for  his  own  deed. 

(Signature.) 

(118.) 
Bond  for  a  Deed. 

Know  all  Men  by  these  Presents,  That  I  (name  of  (he  obligor) 

of  the  County  of  and  State  of  am  held  and 

firmly  bound  to  (name  of  the  obligee')  of  the  County  of  and 

State  of  in  the  sum  of  dollars,  to  be  paid  to 

said  (name  of  obligee)  or  his  executors,  administrators,  or  assigns,  to  the  pay- 

ment whereof  I  bind  myself,  my  heirs,  executors,  and  administrators,  firmly  by  these 
presents.  Sealed  with  my  seal  and  dated  the  day  of  , 

A.  D.  18 

The  Condition  of  this  obligation  is  that  if  I  the  said  (name  of  the 

obligor)  upon  payment  of  dollars,  and  interest  thereon,  as  agreed 

and  promised  by  said  (name  of  the  obligee)  agreeably  to  his  promissory  note, 

dated  18     ,  and  made  payable  as  follows,  to  wit  (here  set  forth  the 

note.  If  there  be  no  note  from  the  obligee,  omit  this  part)  shall  convey  to  said 
(name  of  the  obligee)  or  his  heirs,  executors,  or  assigns,  forever,  the  following- 
described  real  estate,  situate,  lying  and  being  in  the  County  of  and 
State  of  to  wit  (here  describe  carefully  the  land  or  premises  granted, 
as  described  in  Form  107)  deed  or  deeds  in  common  form,  duly  executed  and  ac- 
knowledged, and  hi  the  mean  tune  shall  permit  said  (name  of  the  obligee)  to 
occupy  and  improve  said  premises  for  his  own  use,  then  this  obligation  shall  be 
void,  otherwise  it  shall  remain  hi  full  force. 

(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

STATE  OP  ^ 

[•ss. 
COUNTY  OF  ) 

Be  it  Remembered,  That  on  this  day  of 

A.D.  18  ,  before  the  undersigned,  a  Notary  Public  (or  other  magistrate),  within 
and  for  the  County  of  aforesaid,  personally  came  (name  of 

the  obligor)  who  is  personally  known  to  me  to  be  the  same  person  whose  name 
is  subscribed  to  the  foregoing  instrument  of  writing,  as  the  obligor  therein,  and 
acknowledged  the  same  to  be  his  free  act  and  deed,  for  the  purposes  therein  men- 
tioned. 

In  Testimony  "Whereofj  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal  at  my  office  hi  the  day  and  year  first  above 

written. 

(Signature.)    (Seal.) 


FORMS   OF  DEEDS.  461 

(119.) 
Contract  for  Sale  of  Land,  with  Penal  Obligation. 

Articles  of  Agreement,  Made  and  concluded  this  day 

of  A.D.  18        ,  between  of  the  County  of 

and  State  of  of  the  one  part,  and  of  the 

County  of  and  State  of  of  the  other  part 

as  follows :  — 

The  said  (name  of  the  party  of  the  first  part),  for  the  consideration 

hereinafter  mentioned,  does  for  himself  and  for  his  heirs,  covenant  and  agree  with 
the  said  (name  of  the  party  of  the  second  part)  and  his  heirs  and  assigns,  by 

these  presents,  that  he  the  said  party  of  the  first  part,  shall  and  will,  on  or  before 
the  day  of  A.D.  18  ,  at  the  proper  costs 

and  charges  of  the  said  party  of  the  first  part  (or  of  the  second  part  if  that  is  agreed), 
his  heirs  and  assigns,  by  good  and  lawful  deed  or  deeds,  well  and  sufficiently  grant, 
convey  and  assure  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  in 
fee  simple,  clear  of  all  incumbrances,  all  that  certain  tract  or  parcel  of  land  lying, 
being  and  situate  in  the  County  of  State  of  , 

as  follows,  to  wit  (here  describe  carefully  the  land  or  premises  granted,  as  directed  in 
Form  107.) 

In  Consideration  Wliereof,  The  said  (here  the  name  of  the  party 

of  the  second  part),  for  himself  and  his  heirs,  does  covenant  and  agree  with  the  said 
party  of  the  first  part,  and  with  his  heirs  and  assigns,  by  these  presents,  that  he 
the  said  party  of  the  second  part,  and  his  heirs,  or  some  of  them,  shall  and  will  on 
the  execution  and  delivery  of  the  said  deed  or  deeds  as  aforesaid,  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  said  party  of  the  first  part,  or  his  heirs  and 
assigns,  the  sum  of  dollars,  in  the  manner  following,  to  wit  (set  forth 

the  terms  and  times  of  payment  as  agreed  on).  And  upon  (set  forth  the  time  agreed 
on)  the  said  party  of  the  first  part  shall  give  to  the  said  party  of  the  second  part 
possession  of  the  aforesaid  premises. 

And  for  the  true  performance  of  all  and  every  the  covenants  and  agreements 
aforesaid,  each  of  the  said  parties  bindeth  himself,  his  heirs,  executors  and  admin- 
istrators unto  the  other,  his  executors,  administrators  and  assigns,  in  the  penal 
sum  of  dollars. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands  and 

seals  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of  us, 

(If  it  is  intended  that  this  contract  should  be  recorded,  in  almost  all  cases  it  should 
be,  an  acknowledgment  by  both  parlies  shouU  follow;  and  the  record  should  be  like 
that  in  the  next  Form.) 


462  DEEDS  CONVEYING  LAND. 

(120.) 
Power  of  Attorney  to  Sell  Lands. 

Know  all  Men  by  these  Presents,  That  I,  the  undersigned          (nanu 
of  the  selling  party)  of  the  town  (or  city)  of  ,  County  of  , 

and  State  of  ,  have  this  day  made,  constituted  and  appointed, 

and  do  by  .these  presents  make,  constitute  and  appoint  (name  of  attorney) 

of  the  town  (or  city)  of  ,  in  the  County  of  and 

State  of  ,  my  true  and  lawful  attorney,  for  me  and  in  my  name, 

to  sell  and  dispose  of,  absolutely,  in  fee  simple,  the  following-described  lot,  tract  or 
parcel  of  land,  or  any  part  thereof,  situate,  lying  and  being  in  the  County  of 
and  State  aforesaid,  to  wit  (here  describe  carefully  the  land  or  premises  granted,  as 
directed  in  Form  107)  for  such  price  or  sum  of  money,  and  to  such  person  or  per- 
sons as  he  shall  think  fit  and  convenient ;  and  also  for  me  and  hi  my  name,  and  as 
my  act  and  deed,  to  sign,  execute,  acknowledge  and  deliver,  such  deed  or  deeds, 
and  conveyance  or  conveyances,  for  the  absolute  sale  and  disposal  thereof,  or  of 
any  part  thereof,  with  such  clause  or  clauses,  covenant  or  covenants,  and  agreement 
or  agreements,  to  be  therein  contained,  as  my  said  attorney  shall  think  fit  and 
expedient ;  hereby  ratifying  and  confirming  all  such  deeds,  conveyances,  bargains 
and  sales  which  shall  at  any  time  hereafter  be  made  by  said  attorney  touching 
or  concerning  the  premises. 

In  Testimony  Whereof  I  have  hereunto  set  my  hand  and  seal,  on  this 
day  of  ,  A.D.  18 

(Signature.)     (Seal) 

STATE  OF  ^ 

J-ss. 
COUNTY  OF  ) 

Be  it  Remembered,  That  on  this  day  A.D.  18       , 

before  the  undersigned,  a  notary  public  (or  other  magistrate),  within  and  for  the 
County  of  and  State  of  ,  personally  came 

(the  name  of  the  principal)  who  is  personally  known  to  me  to  be  the  same  person 
whose  name  is  subscribed  to  the  foregoing  instrument  of  writing,  and  acknowledged 
the  same  to  be  his  free  act  and  deed,  for  the  purposes  therein  mentioned. 

In  "Witness  "Whereof^  I  have  hereto  set  my  hand  and  affixed  my  official 
seal,  at  my  office  hi  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

STATE  OF  ) 

y  88.      IN  THE  RECORDER'S  OFFICE. 
COUNTY  OF  ) 

I,  ,  Clerk  of  the  Circuit  Court,  and  ex-officio  Recorder  of 

said  county  (or  whoever  else  is  the  recording  officer)  do  hereby  certify  that  the  within 


FORMS  OP  DEEDS.  463 

instrument  of  writing  was  on  the  day  of  A.D.  186 

duly  filed  for  record  in  this  office,  and  is  recorded  in  the  Records  of  this  office  to 
Book  at  page 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
said  court,  at  this  day  of  A.D.  186 

Recorder. 
Per  Deputy. 


(121.) 
Trust  Deed  for  tJie  Benefit  of  a  Wife,  or  some  other  Person. 

This  Deed,  Made  and  entered  into  this  day  of 

eighteen  hundred  and  sixty  by  and  between  (name,  resi- 

dence and  occupation  of  the  grantor)  party  of  the  first  part,  and  (the  name, 

residence  and  occupation  of  the  trustee)  party  of  the  second  part,  and  (name 

of  the  wife  or  any  person  who  is  to  have  the  benefit  of  the  trust)  party  of  the  third 
part,  witnesseth :  That  the  said  party  of  the  first  part,  in  consideration  of  the  sum 
of  dollars,  to  him  in  hand  paid  by  the  said  party  of  the  third 

part,  the  receipt  of  which  is  hereby  acknowledged,  and  the  further  sum  of  one 
dollar  to  him  paid  by  the  said  party  of  the  second  part,  the  receipt  of  which  is 
hereby  also  acknowledged,  do,  by  these  presents,  give,  grant,  sell,  transfer,  convey 
and  assign  unto  the  said  party  of  the  part,  the  following-de scribed  tract  or 

parcel  of  land,  that  is  to  say  (here  describe  the  premises  carefully,  as  directed  in 
Form  107). 

To  Have  and  to  Hold  the  Same,  With  all  the  rights,  privileges,  and 
appurtenances  thereto  belonging,  or  in  any  wise  appertaining,  unto  him  the  said 
party  of  the  second  part,  his  heirs  and  assigns  forever :  In  trust,  however,  to  and 
for  the  sole  and  separate  use,  benefit,  and  behoof  of  wife 

of  the  said  (or  the  name  of  the  son  or  daughter,  or  any  other  person,  may  be 

substituted  for  that  of  the  wife)  and  the  said  party  of  the  second  part  hereby  cove- 
nants and  agrees  to  and  with  the  said  the  party  of  the  third 
part,  that  he  will  suffer  and  permit  her  (or  him),  without  let  or  molestation,  to  have, 
hold,  use,  occupy,  and  enjoy  the  aforesaid  premises,  with  all  the  rents,  issues,  profits 
and  proceeds  arising  therefrom,  whether  from  sale  or  lease,  for  her  own  sole  use 
and  benefit,  separate  and  apart  from  her  said  husband,  and  wholly  free  from  his 
control  and  interference,  debts  and  liabilities,  courtesy,  and  all  other  interests  what- 
soever ;  -and  that  he  will,  at  any  and  all  times  hereafter,  at  the  request  and  direction 
of  the  said  (name  of  the  party  of  the  third  part)  expressed  in  writing,  signed 
by  her  (or  him)  or  by  her  (or  his)  authority,  bargain,  sell,  mortgage,  convey,  lease, 
rect,  convey  by  deed  of  trust  for  any  purpose,  or  otherwise  dispose  of  said  premises, 
or  any  part  thereof,  to  do  which  full  power  is  hereby  given,  and  will  pay  over  the 
rents,  issues,  profits  and  proceeds  thereof  to  the  said  party  of  the  third  part,  and 


464  DEEDS  CONVEYING  LAND. 

that  he  will,  at  the  death  of  the  said  party  of  the  third  part,  convey  or  dispose  of 
the  said  premises,  or  such  part  thereof  as  may  then  be  held  by  him  under  this  deed, 
and  all  profits  and  proceeds  thereof,  in  such  manner,  to  such  person  or  persons,  and 
at  such  time  or  times,  as  the  said  party  of  the  third  part  shall,  by  her  (or  his)  last 
will  and  testament,  or  any  other  writing  signed  by  her,  or  by  her  authority,  direct 
or  appoint ;  and  in  default  of  such  appointment,  that  he  will  convey  such  premises 
to  (here  state  what  it  is  intended  shall  be  done  with  the  property  at  the  death  of  the 
party  of  the  third  part  if  he  or  she  die  intestate).  And  the  said  party  of  the  third 
part  shall  have  power  at  any  time  hereafter,  whenever  she  (or  he)  shall  from  any 
cause  deem  it  necessary  or  expedient,  by  an  instrument  in  writing  under  her  (or  his) 
hand  and  seal,  and  by  her  (or  him)  acknowledged,  to  nominate  and  appoint  a  trustee, 
or  trustees,  in  the  place  and  stead  of  the  party  of  the  second  part  above  named ; 
which  trustee  or  trustees,  or  the  survivor  of  them,  or  the  heirs  of  such  survivor, 
shall  hold  the  said  real  estate  upon  the  same  trust  as  above  recited ;  and  upon  the 
nomination  and  appointment  of  such  new  trustees,  the  estate  in  trust  hereby  vested 
in  said  party  of  the  second  part,  shall  thereby  be  fully  transferred  and  vested  in  the 
trustee  or  trustees  so  appointed  by  the  said  party  of  the  third  part.  And  said  party 
of  the  first  part,  hereby  covenants  to  warrant  and  defend  the  title  to  the  said  real 
estate  against  the  lawful  claims  of  all  persons  whomsoever,  to  the  said  parties  of  the 
second  and  third  parts,  their  heirs  and  assigns.  And  the  said  party  of  the  second 
part  covenants  faithfully  to  perform  and  fulfil  the  trust  herein  created. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hand 
and  seal    the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

(Signature.)     (Seal.) 

(Signature.)     (Seal) 

THE  STATE  OF 


>-ss. 


COUNTY  OF 

Be  it  Remembered,  That  on  the  day  of 

eighteen  hundred  and  sixty  ,  before  me,  the  undersigned 

came  (the  persons  who  execute  the  instrument)  who  are  personally  known  to 

me  to  be  the  same  persons  whose  names  are  subscribed  to  the  foregoing  instrument 
of  writing,  as  parties  thereto,  and  severally  acknowledged  the  same  to  be  their  free 
act  and  deed  for  the  purposes  therein  mentioned. 

(Signature.') 

(122.) 

Trust  Deed  to  secure  Payment  of  a  Note,  without  Release  of 
Homestead  or  Dower. 

This  Deed,  Made  and  entered  into  this  day  of 

eighteen  hundred  and  ,  by  and  between  (name  and 

occupation  of  the  grantor  who  is  the  debtor)  of  the  County  of  State 


FOEMS  OF  DEEDS.  465 

of  ,  part    of  the  first  part,  and  (name  and  occupation 

of  the  trustee)  of  the  County  of  State  of  , 

part      of  the  second  part,  and  (name  and  occupation  of  the  creditor  for 

whose  benefit  the  deed  is  made)  of  the  County  of  State  of  , 

part    of  the  third  part : 

Witnesseth,  That  the  said  party  of  the  first  part,  in  consideration  of  the  debt 
and  trust  hereinafter  mentioned  and  created,  and  of  the  sum  of  one  dollar  to  him 
paid  by  the  said  party  of  the  second  part,  the  receipt  of  which  is  hereby  acknowl- 
edged, does  by  these  presents  grant,  bargain  and  sell,  convey  and  confirm,  unto  the 
said  party  of  the  second  part,  the  following-described  real  estate,  situate,  lying  and 
being  in  the  County  of  and  State  of  ,  to  wit 

(here  describe  carefully  the  land  or  premises  granted,  as  described  in  Form  107). 

To  Have  and  to  Hold  the  same,  with  the  appurtenances,  to  the  party  of 
the  second  part,  and  to  his  successor  or  successors  in  this  trust,  and  to  him  and  his 
heirs  and  his  and  their  grantees  and  assigns,  forever. 

In  Trust,  However,  for  the  following  purposes :  Whereas  the  said  party  of 
the  first  part  has  this  day  made,  executed  and  delivered  to  the  said  party  of  the 
third  part,  his  promissory  note  ,  of  even  date  herewith,  by  which  he  promises  to 
pay  to  the  said  (name  of  the  creditor),  or  order,  for  value  received, 

loo  dollars,  in  (the  days  or  months  when  the  note  is  payable) 

Now  Therefore,  If  the  said  party  of  the  first  part,  or  any  one  for  him,  shall 
well  and  truly  pay  off  and  discharge  the  debt  and  interest  expressed  in  the  said 
note  and  every  part  thereof,  when  the  same  becomes  due  and  payable  according 
to  the  true  tenor,  date  and  effect  of  said  note,  then  this  deed  shall  be  void,  and  the 
property  hereinbefore  conveyed  shall  be  released  at  the  cost  of  the  said  party  of 
the  first  part ;  but,  should  the  said  first  party  fail  or  refuse  to  pay  the  said  debt,  or 
the  said  interest,  or  any  part  thereof,  when  the  same  or  any  part  thereof  shall 
become  due  and  payable,  according  to  the  true  tenor,  date  and  effect  of  said  note  , 
then  the  whole  shall  become  due  and  payable,  and  this  deed  shall  remain  in  force ; 
and  the  said  party  of  the  second  part,  or  in  case  of  his  absence,  death,  refusal  to 
act,  or  disability  in  any  wise,  the  (then)  acting  sheriff  of  County, 

,  at  the  request  of  the  legal  holder  of  the  said  note,  may  proceed 
to  sell  the  property  hereinbefore  described,  or  any  part  thereof,  at  public  vendue, 
to  the  highest  bidder,  at  ,  in  the  of 

County,  ,  for  cash,  first  giving  days'  public 

notice  of  the  time,  terms  and  place  of  sale,  and  of  the  property  to  be  sold,  by  adver- 
tisement hi  some  newspaper  printed  and  published  in  the  of 
,  and  upon  such  sale  shall  execute  and  deliver  a  deed  in  fee 

simple  of  the  property  sold  to  the  purchaser  or  purchasers  thereof,  and  receive  the 
proceeds  of  said  sale;  and  any  statement  of  facts  or  recital  by  the  said  trustee,  in 
relation  to  the  non-payment  of  the  money  secured  to  be  paid,  the  advertisement, 
sale,  receipt  of  the  money,  and  the  execution  of  the  deed  to  the  purchaser,  shall  be 
received  as  prima  facie  evidence  of  such  fact ;  and  such  trustee  shall,  out  of  the 


466  DEEDS  CONVEYING  LAND. 

proceeds  of  said  sale,  pay,  first,  the  cost  and  expenses  of  executing  this  trust, 
including  legal  compensation  to  the  trustee  for  his  services,  and  next  shall  apply 
the  proceeds  remaining  over  to  the  payment  of  said  debt  and  interest,  or  so  much 
thereof  as  remains  unpaid,  and  the  remainder,  if  any,  shall  be  paid  to  the  said 
party  of  the  first  part,  or  his  legal  representatives.  And  the  said  party  of  the 
second  part  covenants  faithfully  to  perform  and  fulfil  the  trust  herein  created,  not 
being  liable  or  responsible  for  any  mischance  occasioned  by  others. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

(Signature  of  party  of  the  first  part.)  (  Seal.') 
(Signature  of  party  of  the  second  part.)  (Seal.) 
(Signature  of  party  of  the  third  part.)  (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of  us 
STATE  OF  ) 

>8S. 

COUNTY  OF  ) 

Be  it  Remembered,  That  on  this  day  of 

A.D.  186       ,  befqre  the  undersigned,  a 

within  and  for  the  County  of  and  State  of  ,  personally 

came  (names  of  all  the  parties  executing  the  deed)  who  are 

personally  known  to  me  to  be  the  same  persons  whose  names  are  subscribed  to  the 
foregoing  instrument  of  writing,  as  parties  thereto,  and  acknowledged  that  they 
executed  Jhe  same  for  the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereto  set  my  hand  and  affixed  my  official 
seal  at  my  office  in  the  day  and  /ear  first  above  written. 

(Signature.)     (Seal.) 


(123.) 

Deed    of    Trust    to   Secure  a    Debt;    Fuller  Form,    and    with 
Release  of  Dower. 

This  Deed,  Made  and  entered  into  this  day  of  , 

eighteen  hundred  and  sixty-  ,  by  and  between  (name  and  occupation 

of  the  debtor  who  is  grantor)  and          (name  of  the  wife  of  the  grantor)  of  (resi- 

dence) parties  of  the  first  part,  and  (name  of  the  grantees  who  are  the  trustees) 

of          (residence)  parties  of  the  second  part,  and  (name,  residence,  and  occu- 

pation of  the  creditor  for  whose  benejit  the  trust  is  created)  of  party  of  the 

third  part,  witnesseth,  that  the  said  parties  of  the  first  part,  in  consideration  of  the 
debt  and  trust  hereinafter  mentioned  and  created,  and  of  the  sum  of  one  dollar  to 
them  paid  by  the  said  parties  of  the  second  part,  the  receipt  of  which  is  hereby 


FOKMS  OF  DEEDS.  467 

acknowledged,  do  by  these  presents  grant,  bargain  and  sell,  convey  and  confirm, 
unto  the  said  parties  of  the  second  part,  the  following-described  real  estate,  to  wit 
(here  describe  carefully  the  land  or  premises  granted,  by  metes  and  bounds,  as  directed, 
in  Form  107). 

To  Have  and  to  Hold  the  same  with  the  appurtenances,  to  the  said  parties 
of  the  second  part,  and  to  the  survivor  of  them,  and  to  their  successor  hereinafter 
designated,  and  to  the  assigns  of  the  said  parties  of  the  second  part,  or  of  said 
survivor,  or  of  said  successor  and  his  heirs  forever. 

In  Trust,  however,  for  the  following  purpose  :  Whereas  the  said  (name 

of  the  grantor  and  debtor)  (here  describe  the  debt,  and  if  a  promissory  note  is 

given,  describe  that,  or  set  forth  a  copy  of  it  (and  has  also  agreed  and  covenanted,  to 
and  with  the  said  party  of  the  third  part  and  his  indorsees  or  assignees,  to  cause 
all  taxes  and  assessments,  general  and  special,  to  be  paid  within  the  times  required 
by  law,  whenever  imposed  upon  said  property,  and  has  also  further  covenanted  and 
agreed,  to  and  with  said  party  of  the  third  part,  his  indorsees  or  assignees,  that  he 
will  keep  the  improvements  upon  said  property  constantly  insured  hi  some  good  and 
responsible  insurance  office  or  offices,  to  be  approved  by  said  party  of  the  third 
part,  his  indorsees  or  assignees,  in  a  sum  not  less  than  dollars,  until 

said  notes  are  (or  note  is)  fully  paid,  and  will  assign  the  policy  or  policies  of  insur- 
ance to  said  party  of  the  third  part,  his  indorsees  or  assignees,  with  full  power  to 
demand,  receive,  and  collect,  any  and  all  moneys  accruing  under  said  insurance, 
and  the  same  to  apply  to  the  payment  of  said  notes  and  the  interest  that  may 
accrue  thereon,  unless  otherwise  paid,  when  the  same  become  due,  and  has  also 
covenanted  and  agreed,  to  and  with  said  party  of  the  third  part,  his  indorsees  or 
assignees,  that  there  shall  not,  at  any  time  while  said  notes  remain  unpaid,  be  any 
mechanics'  liens  filed  or  taken,  upon  the  real  estate  herein  described,  or  upon  the 
buildings  which  now  are,  or  may  hereafter  be,  erected  upon  said  real  estate,  and 
that  should  said  party  of  the  first  part  fail  or  neglect  to  pay  said  taxes,  when  the 
same  are  by  law  due  and  payable,  or  fail  or  neglect  to  effect  insurance  and  assign 
the  policy  or  policies  as  above  provided,  or  fail  or  neglect  to  keep  said  real  estate 
free  from  mechanics'  liens,  the  said  party  of  the  third  part,  his  indorsees  or  assign- 
ees, may,  at  his  option,  consider  the  notes  above  mentioned  and  described,  as  hav- 
ing each  and  all  become  due  and  payable,  though  not  then  due  by  the  tenor  and 
effect  thereof,  and  may  require  the  said  parties  of  the  second  part,  or  the  survivor 
of  them,  or  their  successor  in  trust,  to  sell  the  property  above  described  as  herein- 
after provided,  or  may  pay  said  taxes,  or  the  premium  for  such  insurance,  or  the 
amount  of  said  mechanics'  liens,  and  the  amount  or  amounts  so  paid,  together  with 
interest  thereon,  at  the  rate  of  ten  per  cent  per  annum,  shall  be  taken  and  con- 
sidered as  a  part  of  the  amount  secured  hereby,  and  to  be  paid  and  refunded  out  of 
the  proceeds  of  sale,  should  such  sale  be  made,  as  hereinafter  provided. 

Now,  if  the  said  notes  be  well  and  truly  paid,  as  the  same  severally  become  due 
and  payable,  according  to  the  tenor  and  effect  of  said  notes,  and  each  of  them,  and 
if  the  said  covenants  and  agreements  in  regard  to  taxes,  insurance,  and  mechanics' 


468  DEEDS  CONVEYING  LAXD. 

liens  be  faithfully  kept  and  performed,  and  all  moneys  paid  by  said  third  r»art,  his 
indorsees  or  assignees,  on  account  of  said  taxes,  insurance,  and  mechanics'  liens, 
are  refunded,  with  the  interest  thereon,  as  above  provided,  then  this  deed  shall  be 
void,  and  the  property  hereinbefore  conveyed  shall  be  released  at  the  cost  of  the 
said  parties  of  the  first  part ;  but  should  default  be  made  in  the  payment  of  the  said 
notes,  or  either  of  them,  or  any  part  of  either  of  them,  or  of  the  interest  that  may 
accrue  thereon,  or  any  part  thereof,  as  the  same  severally  become  due  and  payable, 
or  if  the  said  parties  of  the  first  part  fail  or  neglect  to  pay  said  taxes,  when  due  and 
payable,  or  to  insure  the  buildings  on  said  property,  or  to  keep  the  same  free  from 
mechanics'  liens,  as  provided  in  the  foregoing  covenants  and  agreements,  or  to  refund 
to  said  party  of  the  third  part,  his  indorsees  or  assignees,  the  amount  paid  by  him  or 
them  for  said  taxes,  insurance,  or  mechanics'  liens,  with  interest  thereon,  as  above 
provided,  then  this  deed  shall  remain  in  force,  and  the  said  parties  of  the  second 
part,  or  either  of  them,  or  the  survivor  of  them,  or  in  the  event  of  the  death  of  both 
of  them,  or  absence  from  this  State,  or  their  refusal  to  act,  or  other  disqualification 
for  the  performance  of  the  duties  of  this  trust,  then,  at  the  request  of  the  holder  of 
said  notes,  the  sheriff  of  she  county  of  for  the  time  being  (who  shall 

thereupon  become  the  successor  of  said  trustees,  and  of  the  survivor  of  them,  to  the 
title  of  said  property,  and  the  same  become  vested  in  him,  in  trust,  for  the  purposes 
and  objects  of  these  presents,  with  all  the  powers,  duties  and  obligations  thereof), 
may  proceed  to  sell  said  described  property,  or  any  part  thereof,  at  public  vendue, 
to  the  highest  bidder,  for  cash,  at  the  (state  the  place  of  sale)  first  giving  twenty 

days'  public  notice  of  the  time,  terms,  and  place  of  said  sale,  and  the  property  to  be 
sold,  by  advertisement  in  some  newspaper  printed  in  the  English  language,  and 
published  in  the  county  of  and  upon  such  sale,  the  said  parties  of  the 

second  part,  or  either  of  them,  or  the  survivor  of  them,  or  their  successor  in  trust, 
the  sheriff  of  said  county,  as  the  case  may  be,  shall  execute  and  deliver  a  deed  or 
deeds,  in  fee  simple,  of  the  property  sold,  to  the  purchaser  or  purchasers  thereof  (a 
recital  wherein  of  the  request  of  the  holder  of  said  notes  that  they  should  proceed 
to  sell,  of  the  publication  of  said  notice,  and  in  case  of  sale  by  the  sheriff  of  said 
county,  of  the  happening  of  any  or  either  of  the  events  making  him  successor  in 
this  trust,  shall  be  received  in  all  courts  of  law  or  equity,  and  to  all  intents  and  pur- 
poses, as  full  and  sufficient  proof  thereof),  and  shall  receive  the  proceeds  of  said 
sale,  out  of  which  shall  be  paid,  first,  the  cost  and  expenses  of  executing  this  trust, 
including  compensation  to  said  trustee,  or  said  sheriff,  for  their  or  his  services,  next 
the  amount  paid  by  said  party  of  the  third  part,  or  his  indorsees  or  assignees  for 
taxes,  insurance,  or  mechanics'  liens,  with  ten  per  cent  per  annum  interest  thereon, 
from  the  date  of  the  payment  thereof,  and  next,  the  amount  remaining  unpaid  upon 
the  principal  note  above  described,  together  with  all  of  the  interest  notes  then  due, 
and  so  much  of  the  interest  note,  next  falling  due,  as  may  be  necessary  to  satisfy 
the  interest  on  said  principal  note  at  the  rate  of  per  cent  per  annum  from  the 

date  when  the  preceding  interest  note  became  due,  up  to  the  day  of  salt,  it  being 
distinctly  understood  and  agreed  between  the  parties  hereto,  that  the  faii^rt  to  pay 
any  one  of  said  notes,  principal  or  interest,  when  due  and  payable,  shall  -  *UBV  the 


FORMS  OF  DEEDS.  469 

principal  note  to  become  immediately  due  and  payable,  though  not  then  due  by 
the  terms,  tenor,  or  effect  thereof,  and  the  remainder,  if  any,  shall  be  paid  to  the 
said  parties  of  the  first  part  or  their  legal  representatives. 

And  the  said  parties  of  the  second  part  covenant  faithfully  to  perform  and  fulfil 
the  trust  herein  created. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

,  (Signature  of  grantor.)  (Seal.) 

(Signature  of  grantor's  wife.)  (Seal.) 

(Signature  of  trustee.)  (Seal.) 

(Signature  of  other  trustee.)  (Seal.) 

(Signature  of  creditor.)  (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 


STATE  OF  ) 

>  S3. 

COUNTY  OF  ) 

Be  it  Remembered,  That  on  this  day  of  eighteen 

hundred  and  sixty-  before  me,  the  undersigned,  came 

(names  of  the  parties  who  execute  the  deed)  who  are  personally  known  to  me  to  be 
the  same  persons  whose  names  are  subscribed  to  the  foregoing  instrument  of  writing, 
as  parties  thereto,  and  acknowledged  the  same  to  be  their  act  and  deed 

for  the  purposes  therein  mentioned. 

And  the  said  having  been  by  me  first  made 

acquainted  with  the  contents  of  said  instrument,  on  an  examination  separate  and 
apart  from  her  husband,  acknowledged  that  she  executed  the  same  freely  and  with- 
out compulsion  or  undue  influence  of  her  said  husband. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal  of  office  the 
day  and  year  first  above  written. 


(124.) 

Trust  Deed  to  Secure  a  Note,  Shorter  Form,  but  with  Warranty, 
and  Release  of  Homestead  and  Dower. 

This  Indenture  Witnesseth,  that  (name,  residence,  and  occupation 

of  grantor)  and  (name  of  the  wife  of  grantor)  wife  of  the  grantor  herein,  in 

consideration  of  the  indebtedness  hereinafter  mentioned,  and  one  ($1)  dollar  to 
them  paid  by  (name,  residence,  and  occupation  of  the  trustee)  grantee    ,  the 

receipt  whereof  is  hereby  acknowledged,  do    hereby  grant,  bargain,  sell,  remise, 


470  DEEDS  CONVEYING  LAND. 

release  and  convey  unto  the  said  grantee  ,  the  following-described  lot  ,  piece  , 
or  parcel  of  land,  situate  in  the  county  of  and  State  of 

to  wit  (here  describe  carefully  the  land  or  premises  granted,  as 
directed  in  Form  107) 

To  Have  and  to  Hold  the  same,  with  all  the  privileges  thereunto  or  in 
any  wise  appertaining,  and  all  the  estate,  right,  title,  interest,  claim,  or  demand  in 
and  to  the  same,  either  now  or  which  may  be  hereafter  acquired  unto  the  said 
grantee,  his  heirs  and  assigns.  In  trust,  nevertheless,  for  the  following  purposes : 

"Whereas,  the  said  (name  of  the  grantor)  grantor,  herein,  is  justly  indebted 
upon  a  certain  promissory  note,  bearing  even  date  herewith,  payable  to  the  order 
of  (here  describe  the  note) 

Now,  in  case  of  default  in  the  payment  of  said  note  or  any  part  thereof,  or  the 
interest  accruing  thereon,  according  to  the  tenor  and  effect  thereof,  or  in  the  pay- 
ment of  any  taxes  or  assessments,  ordinary  or  special,  which  may  be  levied  or 
assessed  against  said  premises  during  the  continuance  hereof,  on  the  application  of 
the  legal  holders  of  the  said  note,  the  said  grantee  (full  power  being  hereby  given), 
or  his  legal  representatives,  after  having  advertised  such  sale  days  hi  a  news- 

paper published  hi  or  by  posting  up  written  or  printed  notices 

in  four  (4)  public  places  hi  the  county  where  said  premises  are  situate  (personal 
notice  being  hereby  expressly  waived),  shall  sell  the  said  premises  or  any  part 
thereof,  and  all  the  right  and  equity  of  redemption  of  the  said  grantor,  or  his  heirs, 
executors,  administrators,  or  assigns  therein,  at  public  vendue,  to  the  highest  bidder 
for  cash,  at  at  the  tune  appointed  in  the  said  advertisement,  or 

may  adjourn  the  sale  from  time  to  tune  at  discretion  and  as  the  attorney  of  the  said 
grantor,  for  such  purpose  hereby  constituted  irrevocable,  or  hi  the  name  of  the  said 
grantee  or  his  legal  representatives,  shall  execute  and  deliver  to  the  purchaser  or 
purchasers  thereof,  deeds  for  the  conveyance  in  fee  of  the  premises  sold,  and  shall 
apply  the  proceeds  of  sale  (1st)  to  the  payment  of  all  advances  made  by  the  said 
party  of  the  second  part  for  taxes  and  assessments ;  and  expenses  for  advertising, 
selling  and  conveying  as  aforesaid,  including  attorney's  fees,  and  (2d)  the  amount 
due  on  said  note,  (3d)  rendering  the  overplus,  if  any  there  be,  to  the  said  grantor 
or  legal  representatives,  at  the  office  of  the  said  grantee  hi 
and  it  shall  not  be  the  duty  of  the  purchaser  to  see  to  the  application  of  the  pur- 
chase money. 

And  the  said  (names  of  the  grantor  and  of  his  wife)  parties  of  the  first  part, 

hereby  expressly  waive,  release,  and  relinquish  unto  the  said  party  of  the  second 
part,  the  said  grantee,  his  heirs,  executors,  administrators,  and  assigns,  all  right, 
title,  claim,  interest,  and  benefit  whatever,  hi  and  to  the  above-described  premises 
and  each  and  every  part  thereof,  which  is  given  by  or  results  from  all  laws  of  this 
State  pertaining  to  the  exemption  of  homesteads :  Provided,  that  the  said  grantor 
and  his  heirs  and  assigns  may  hold  and  enjoy  said  premises,  and  the  rents,  issues, 
and  profits  thereof,  until  default  shall  be  made  as  aforesaid,  and  that  when  the  said 
note  and  all  expenses  accruing  hereby  shall  be  fully  paid,  the  said  grantee  or  his 


FORMS   OF  DEEDS.  471 

legal  representatives,  shall  reconvey  all  the  estate  acquired  hereby  in  the  said 
premises,  or  any  part  thereof,  then  remaining  unsold,  to  (and  at  the  cost  of)  the 
said  grantor,  or  his  heirs  or  assigns. 

And  the  said  grantor  covenants  with  the  said  grantee  and  with  his  legal  repre- 
sentatives and  assigns  that  he  is  seized  in  fee  of  the  said  premises,  and  has  good 
right  to  convey  the  same  in  form  aforesaid,  that  they  are  free  from  all  liens  or 
incumbrances  of  whatever  name  or  nature,  and  that  he  will  warrant  and  defend  the 
same  against  all  claims  whatsoever,  and  will  pay  all  taxes  or  assessments  levied  or 
assessed  on  the  said  premises,  or  any  part  thereof,  during  the  continuance  hereof, 
and  pay  the  same  ten  days  before  the  day  of  sale  thereof. 

Witness  the  hands  and  seals  of  the  said  (names  of  grantor  and  his  wife) 

this  day  of  A.D.  186 

(Signature  of  grantor.)  (Seal.) 

(Signature  of  wife  of  grantor.)  (Seal.) 

In  Presence  of 


>ss. 

UNTY.    ) 


STATE  OF 

COUNTY. 

On  the  day  of  eighteen  hundred  and  sixty- 

before  me  of  the  county  of  in  the  State  of 

appeared  (name  of  the  grantor)  personally  known  to  me  to  be  the  real  person 

whose  name  subscribed  to  the  foregoing  deed  of  trust,  as  having  executed 

the  same,  and  then  acknowledged  the  execution  thereof  as  free  act  and 

deed  for  the  uses  and  purposes  herein  mentioned. 

And  the  said  (name  of  the  wife  of  grantor)  (who  is  personally  known 

to  me  to  be  the  same  person  who  subscribed  the  said  instrument  of  writing),  having 
had  the  contents  of  the  said  instrument  made  known  and  fully  explained  to  her,  and 
she  also  by  me  being  fully  informed  of  her  rights  under  the  Homestead  Laws  of  the 
State,  and  being  by  me  examined,  separate  and  apart  from  her  said  husband,  did 
acknowledge  said  instrument  to  be  her  free  act  and  deed ;  that  she  executed  the 
same,  and  relinquished  her  dower  in  the  lands  and  tenements  therein  mentioned, 
and  also  all  her  rights  and  advantages  under  and  by  virtue  of  all  laws  of  this  State 
relating  to  the  exemption  of  homesteads,  voluntarily  and  freely,  and  without  the 
compulsion  of  her  husband,  and  that  she  does  not  wish  to  retract. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D.  186 

(Signature.)     (Seal.) 

(125.) 
Deed  from  Trustees. 

This  Deed,  Made  and  entered  into  this  day  of  A.D. 

eighteen  hundred  and  by  and  between  (names  of  trustees)  party 

erf  the  first  part,  and  (name,  residence,  and  occupation  of  grantee)  party  of  the 


472  DEEDS  CONVEYING  LAND. 

second  part,  witnesseth,  that  whereas  (name  of  tht  party  who  conveyed  the 

estate  to  the  trustees)  by  deed  dated  the  day  of  186 

recorded  in  the  Recorder's  office  of  County,  State  of  in 

book  conveyed  the  property  hereinafter  described  La  trust  to  said 

(name  of  trustees)  to  secure  the  payment  of  certain  promissory  notes  in  said 
deed  described,  and  whereas  (here  describe  the  non-payment  or  other  default 

which  has  authorized  the  sale  by  the  trustees)  and  the  party  herein  of  the  first  part, 
at  the  request  of  the  legal  holder  of  said  promissory  notes  acting  in  pursuance  of  the 
provisions  of  said  deed  of  trust,  and  having  first  given  days'  public 

notice  of  the  time,  terms,  and  place  of  sale,  and  of  the  property  to  be  sold,  by  an 
advertisement  inserted  on  the  day  of  A.D. 

in  the  a  daily  newspaper  printed  in  the  city  of  and 

continued  to  the  day  of  sale  (as  will  appear  by  the  copy  of  said  advertisement  and 
affidavit  of  publication  thereof  hereto  annexed  as  a  part  of  this  deed)  did  proceed 
to  sell  the  property  described  in  said  deed  at  public  vendue  to  the  highest  bidder 
for  cash  at  in  the  city  of  on  the 

day  of  186     between  the  hours  of  ten  o'clock  in  the  morning  and  five 

o'clock  in  the  afternoon  of  said  day,  when  and  where  the  same  was  struck  off 
to  (the  name  of  the  purchaser  who  is  the  grantee)  as  the  highest  and  last  bidder 

therefor,  at  the  price  and  sum  of  dollars,  full  payment  whereof  is  hereby 

acknowledged ;  now,  said  party  of  the  first  part,  by  virtue  of  the  proceedings  afore- 
said, and  in  consideration  of  the  sum  of  dollars  to  him  in  hand  paid 
by  said  party  of  the  second  part,  does  by  these  presents  bargain,  sell,  and  convey  to 
said  (name  of  the  grantee)  all  the  right,  title,  and  interest  (which  by  virtue 
of  said  trust  deed  and  the  proceedings  aforesaid  he  may  or  can  bargain,  convey  or 
sell)  in  and  to  the  property  described  La  said  deed  of  trust,  to  wit  (here  describe 
the  land  or  premises  granted  in  the  same  way  in  which  they  are  described  in  the  deed 
of  trust  under  which  the  trustees  act) 

To  Have  and  to  Hold  the  said  described  premises  unto  said  (name 

of  the  purchaser)  and  unto  his  heirs  and  assigns  forever. 

In  Witness  Whereof,  the  said  party  of  the  first  part  has  hereto  set  his 
hand  and  seal  the  day  and  year  first  herein  above  written. 

(Signature.)     (Seal.) 

In  presence  of  (Signature.)     (Seal.) 

STATE  OP  ,  ) 

[•as. 
COUNTY  ) 

Be  it  Remembered,  that  on  this  day  of  A.D.  186 

before  me,  the  undersigned,  personally  came  who  are 

to  me  personally  known  to  be  the  same  persons  whose  names  are  subscribed  to  the 
foregoing  instrument  of  writing  as  parties  thereto,  and  they  acknowledged  the 
same  to  be  their  act  and  deed  for  the  purposes  therein  mentioned. 

(Signature.) 


FOKMS  OF  DEEDS.  473 

(126.) 
Deed  of  Master  in  Chancery. 

This  Indenture,  Made  this  day  of  A.D.  18      , 

between  (name  of  grantor)  Master  in  Chancery,  in  and  for  the  County  of 

and  State  of  ,  of  the  first  part,  and  (name 

of  grantee)  of  the  second  part,  witnesseth  :  That  whereas,  at  the 
terra  of  the  court  of  the  said  County  of  and  State 

of  ,  in  the  year  of  our  Lord  A.D.  18      ,  in  a  certain  suit  and 

proceedings  in  chancery,  pending  in  said  court,  wherein 

were  complainant    ,  and 

were  defendant  ,  to  obtain  a  decree  for  the  sale  of  the  property  hereinafter 
described,  and  for  other  relief,  it  was  ordered,  adjudged,  and  decreed  by  the  court, 
that  (here  set  forth  the  decree  under  which  the  sale  is  made)  and  the  master 

in  chancery,  in  and  for  the  County  of  and  State  of  , 

was  appointed  to  execute  the  said  decree,  and  to  make,  execute,  and  deliver  to  the 
complainant  a  deed  to  the  said  premises  as  aforesaid,  conveying  to  (the  name, 

residence,  and  occupation  of  the  grantee)  all  the  interest  and  title  of  the  defendant 
to  said  premises. 

Now,  Therefore,  Know  all  Men  by  this  Deed,  That  I, 

Master  in  Chancery  as  aforesaid,  in  consideration  of  one  dollar,  to 
me  paid  by  the  said  party  of  the  second  part,  the  receipt  whereof  I  acknowledge 
before  the  execution  hereof,  and  by  virtue  of  the  decree  aforesaid,  have  granted, 
bargained,  and  sold,  and  do  hereby  grant,  bargain,  and  sell  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns  forever,  the  following-described  real  estate, 
lying  in  the  County  of  and  State  of  to  wit  (here 

describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107) 

To  Have  and  to  Hold  the  said  premises,  with  all  the  appurtenances  thereto 
belonging,  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

In  Testimony  Wliereof;  The  said  Master 

in  Chancery  of  County,  in  the  State  of  ,  has  hereto 

set  his  hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

In  Presence  of 


STATE  OF 

•      f 

.88. 

COUNTY. 

1t  clerk  of  the  county  court  in  and  for  the 

County  of  and  State  of  »  do  hereby  certify,  that  the 

above-named  whose  name  appears  signed  to  tne  foregoing 


474  DEEDS   CONVEYING  LAND. 

deed,  is  personally  known  to  me  to  be  the  same  person  described  therein,  and 
acknowledged  to  me  that,  as  master  in  chancery  aforesaid,  he  executed  the  said 
deed  freely  for  the  uses  and  purposes  therein  mentioned. 

Given  under  my  hand  and  official  seal  at  this 

day  of  A.D.  18      . 

(Signature.)  Clerk.     (Seal.) 

(127.) 
Sheriff's  Deed  on  Execution,  in  Use  in  the  Western  States. 

"Wliereas,  (the  name  of  the  plaintiff  in  the  suit  in  which  the  execution  issued) 
did  at  the  term,  A.D.  eighteen  hundred  and  sixty-  of 

the  court  for  the  County  of  in  the 

State  of  ,  recover  a  judgment  against  (name  of  the  defendant 

in  that  suit)  for  the  sum  of  and  costs  of  suit,  upon  which 

judgment  an  execution  was  issued,  dated  on  the  day  of 

A.D.  eighteen  hundred  and  sixty-  directed  to  the  sheriff  of 

County,  to  execute,  and  by  virtue  of  said  execution  (name  of  the  sheriff*) 

of  then  sheriff  of  said  county,  levied  upon  the  lands  hereinafter 

described,  and  the  same  were  struck  off  and  sold  to  (name  of  the  purchaser  at 

the  sheriff's  sale)  he  being  the  highest  and  best  bidder  therefor,  and  the  time  and 
place  of  the  sale  thereof  having  been  duly  advertised  according  to  law. 

And  the  said  (name  of  the  purchaser)  having  duly  assigned  his  certificate 

of  purchase  to  (name  of  the  grantee) 

Now,  Therefore,  Know  all  by  this  Deed,  That  I  (name  of  the 

sheriff)  sheriff  of  said  County  of  in  consideration  of  the  premises, 

have  granted,  bargained,  and  sold,  and  do  hereby  convey  to  the  said  (name 

of  the  grantee)  his  heirs  and  assigns,  the  following-described  tract  of  land,  to  wit 
(here  describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107) 

To  Have  and  to  Hold  the  said  described  premises,  with  all  the  appurte- 
nances thereto  belonging,  to  the  said  (name  of  the  grantee)  and  his  heirs  and 
assigns  forever. 

Witness  my  hand  and  seal,  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  sixty- 

(Signature.)     (Seal.) 

In  Presence  of 

Sheriff  of  County. 

STATE  OP  ,  ) 

(• ss> 
COUNTY  OP  ) 

I,  clerk  of  the  court  of 

County,  do  certify  that  sheriff  of 

County,  personally  known  to  me  to  be  the  real  person  whose  name  is  subscribed  to 


FOBMS  OF  DEEDS.  475 

the  within  annexed  deed,  this  day  acknowledged  before  me  that  he  executed  the 

said  deed,  as  such  sheriff,  voluntarily  and  freely,  for  the  use  and  purposes  therein 
3et  forth. 

Given  under  my  hand,  and  the  seal  of  said  court,  this  day 
of                                  eighteen  hundred  and  sixty-               . 

(Signature.)  Clerk.    (Seal.) 


(128.) 
Sheriff's  Deed,  in  Use  in  New  England. 

Know  all  Men  by  these  Presents,  That  I  (name  of  the  deputy 

sheriff  selling)  of  in  the  County  of  and  State 

of  ,  and  a  deputy  sheriff  under  (name  of  the  sheriff),  Esq., 

sheriff  of  said  county,  having,  on  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ,  by  virtue  of  a  writ 

of  execution,  which  was  issued  upon  a  judgment,  recovered  at  the  term  of  the 
court  holden  at  within  and  for  the  County  of  on 

the  in  the  year  of  our  Lord  eighteen  hundred  and  ,, 

by  (name  of  the  plaintiff  in  the  suit)  of  in  the  County  of 

against  (name  of  the  defendant  in  that  suit)  of 

In  the  County  of  for  the  sum  of  dollars  and 

cents  damage  and  costs  of  suit  taxed  at  dollar* 

and  cents,  seized  and  taken  all  the  right  in  equity  which  the  said 

had  on  the  day  of  in  the 

year  of  our  Lord  eighteen  hundred  and  being  the  tune  when  the  same 

was  attached  on  mesne  process  of  redeeming  the  following-described  mortgaged 
real  estate,  to  wit  (here  describe  carefully  the  land  or  premises  granted,  as  directed  in 
Form  107)  and  having  on  the  day  of  last,  being  thirty  days  at  least 

before  the  time  of  the  sale  hereinafter  mentioned,  given  notice  in  writing,  to  the  said 
(name  of  the  defendant)  of  the  time  and  place  of  sale,  and  having  posted  up  notifi- 
cations thereof  in  one  public  place  in  said  town  of  and  in  one  public 
place  in  each  of  the  towns  of  and  being  two  towns 
adjoining  said  town  of  and  also  having  caused  an  advertisement 
of  the  time  and  place  of  sale,  to  be  published  three  weeks  successively,  before  the 
day  of  sale,  in  the  public  newspaper  called  the  printed 
at  in  said  County  of  on  the  day  of 
in  the  year  of  our  Lord  eighteen  hundred  and  *  made  sale  of  said  right 
in  equity  of  redemption  at  public  auction,  to  (name  of  the  purchaser)  of 
hi  ;  he  being  the  highest  bidder  for  the  same, 
for  the  sum  of  dollars.  Now,  therefore,  hi  consideration  of  said 
sum  of  dollars  to  me  paid  by  the  said  (name  of  the  purchaser) 
the  receipt  whereof  I  do  hereby  acknowledge,  I  have  given,  granted,  bargained, 

32 


476  DEEDS  CONVEYING  LAND. 

and  sold,  and  do,  by  these  presents,  give  grant,  bargain,  sell,  and  convey  to  the 
said  (name  of  the  purchaser)  his  heirs  and  assigns  forever,  all  the  right  in 

equity  which  the  said  (name  of  the  defendant)  had  of  redeeming  the  aforesaid 

mortgaged  real  estate,  at  the  time  aforesaid.     To  have  and  to  hold  the  same  to  the 
said  (name  of  purchaser)  his  heirs  and  assigns,  to  his  and  their  use  forever ; 

subject,  however,  to  be  redeemed  agreeably  to  the  law  in  such  case  made  and  pro- 
vided. And  I,  the  said  (name  of  grantor)  in  my  said  capacity  of  deputy 
sheriff,  do  covenant  with  the  said  (name  of  purchaser)  as  aforesaid,  that,  in 
making  said  sale,  and  in  every  thing  concerning  the  same,  I  have  complied  with, 
and  observed  the  rules  and  requisitions  of  the  law  for  making  sales  of  rights  in 
equity  to  redeem  real  estate.  But  I  do  not  warrant  or  defend  to  the  said 
(name  of  the  purchaser)  that  the  said  (name  of  the  defendant)  had  any  right, 
title,  or  interest  in  said  estate  at  the  time  aforesaid. 

In  Witness  Whereof,  I,  the  said  in  my  said  capacity 

of  deputy  sheriff,  have  hereunto  set  my  hand  and  seal  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

ss.  18  Then  the  above-named 

personally  appeared,  and  acknowledged  the  above  instrument  by  him  signed,  to  be 
his  free  act  and  deed.    Before  me, 

Justice  of  the  Peace. 


(129.) 
Sheriff's  Tax  Deed,  in  Use  in  tJie  Western  States. 

Know  all  Men  by  these  Presents,  That  whereas,  at  the 
Term,  A.D.  18        ,  of  the  Court  of  Countyt 

a  judgment  was  obtained  in  said  court,  in  favor  of  the  State  of  against 

the  following-described  lot        ,  piece        or  parcel        of  land,  for  the  sum  herein 
specified,  to  wit,  the  sum  of  (here  state  in  writing  the  amount  of  the  tax)  ;  said  sum 
being  the  whole  amount  of  taxes,  interest,  and  costs  assessed  upon  said  lot    ,  piece, 
or  parcel        of  land,  for  the  year  18 

And  whereas,  on  the  day  of  A.D.  18 

(name  of  the  collector  of  taxes)  then  collector  of  taxes  of  the  county  aforesaid, 
by  virtue  of  a  precept  or  o'rder  issued  out  of  the 

Court  of  the  county  aforesaid,  dated  the 

day  of  A.D.  18        ,  and  directed  to  the  said 

as  aforesaid,  did  expose  at  public  sale,  at  the  Court-House,  in  the  county  aforesaid, 
in  conformity  with  all  the  requirements  of  the  statutes  in  such  case  made  and  pro 
vided,  the  said  lot  ,  tract,  or  parcel  of  land  above  describee.,  for  the  satisfac- 


FORMS  OF  DEEDS.  477 

tion  of  the  judgment  so  rendered,  as  aforesaid.  And  whereas,  at  the  time  and 
place  aforesaid  (name  of  the  purchaser)  of  the  County  of  and  State  of 

having  offered  to  pay  the  aforesaid  sum,  amounting  to  the  sum 
of  dollars,  and  cents,  for  the  (here  state  what  part 

or  portion  of  the  land  was  sold)  of  said  lot  ,  piece,  or  parcel  of  land,  as  follows, 
to  wit,  the  sum  of  dollars  cents, 

which  was  the  least  quantity  of  said  lot  ,  piece,  or  parcel  of  land  bid  for,  the 
sa'd  lot  ,  tract,  or  parcel  of  land  was  stricken  off  to  (name  of  the  pur- 

chaser) at  that  price.  And  whereas,  the  said  purchaser  has  now  made  and  deliv- 
ered to  me  an  affidavit  of  having  complied  with  all  the  requirements  of  the  statute 
and  constitution  of  the  State  of  necessary  to  entitle  said 

purchaser  to  a  deed  for  the  premises  so  sold  to  him  as  aforesaid ;  and  whereas  the 
said  (name  of  the  purchaser)  has  duly  assigned  the  certificate  of  purchase  of 

the  land  above  described,  unto  (the  name  of  the  grantee)  :    Now,  therefore, 

I,  sheriff  of  the  county  of  for  and  in 

consideration  of  the  said  above-named  sum,  amounting  to  the  sum  of 
dollars,  and  cents,  paid  to  (the  collector  of  taxes)  of  said  county  of 

by  the  said  (the  name  of  the  purchaser)  at  the  timo 

of  the  aforesaid  sale,  and  La  consideration  of  (the  amount  of  costs  and  fees)  loo  dollars 
to  me  paid  by  said  (name  of  grantee)  and  by  virtue  of  the  statute  in  such  case  made 
and  provided,  have  granted,  bargained  and  sold,  and  by  these  presents  do  grant, 
bargain  and  sell  unto  the  said  (name  of  the  grantee)  his  heirs  and  assigns, 

the  premises  so  sold  as  aforesaid,  situated  in  the  County  of  and 

State  of  to  wit  (here  describe  carefully  the  land  or  premises 

granted,  by  metes  and  bounds,  and  contents  or  quantity,  or  boundary  marks  or  monu- 
ments) 

To  Have  and  to  Hold  unto  him,  the  said  (the  name  of  the  grantee) 

his  heirs  and  assigns  forever,  subject,  however,  to  all  the  rights  of  redemption  pro- 
vided by  law. 

In  Witness  Whereof,  I,  sheriff  as  aforesaid,  by  virtue 

of  the  authority  aforesaid,  have  hereunto  subscribed  my  name  and  affixed  my  seal 
this  day  of  A.D.  18 

(Seal.) 
Sheriff  of  County. 

STATE  OF  ) 

COUNTY  OF  ) 

I,  in  and  for  said  County  and  State,  do  certify  that, 

sheriff  of  said  county,  who  is  personally  known  to  me  to 

be  the  real  person  who  executed  and  subscribed  his  name  to  the  foregoing  deed, 
appeared  before  me  this  day,  and  acknowledged  that  he  had  executed  the  same  as 
such  sheriff,  freely  and  voluntarily  for  the  uses  and  purposes  therein  set  forth. 


478  DEEDS  CO-N'VEYIXG  LAND. 

In  attestation  whereof,  I  have  hereunto  set  my  hand  and  attached  the  seal  of 
our  said  court,  at  my  office  in  in  said  County 

and  State,  this  day  of  A.D.  18 

(Signature)  Clerk.     (Seal.) 


(130.) 

Deed  of  Executor,  in  Use  in  the  Eastern  States. 

Know  all  Men  by  these  Presents,  That  whereas  (name  of  the 

executor)  in  the  County  of  and  State  of 

executor  of  the  last  will  of  (name  of  the  testator)  late  of 

deceased,  by  an  order  of  the  Court  of  Probate,  held  at 

within  and  for  the  County  of  on  the  day  of 

in  the  year  one  thousand  eight  hundred  and 

was  licensed  and  empowered  to  sell  and  pass  deeds  to  convey  certain  real  estate  of 
the  said  deceased ;  and  whereas,  the  said  executor  having  given  public 

notice  of  the  intended  sale,  by  causing  notifications  thereof  to  be  published  once  a 
week,  for  three  successive  weeks,  prior  to  the  time  of  sale,  in  the  newspaper  called 
the  printed  at  and  having  first  taken 

the  oath  and  given  the  bond  by  law  in  such  cases  required,  did  on  the 
day  of  in  the  year  one  thousand  eight  hundred  and 

pursuant  to  the  order  and  notice  aforesaid,  sell  by  public  auction  the  real  estate  of 
the  said  deceased  hereinafter  described,  to  (name,  residence,  and  occupation 

of  the  purchaser)  for  the  sum  of  dollars  -^  he  being  the  high- 

est bidder  therefor. 

Now  therefore,  Know  ye,  That  I  the  said  executor 

as  aforesaid,  by  virtue  of  the  power  and  authority  in  me  vested  as  aforesaid,  and  in 
consideration  of  the  aforesaid  sum  of  dollars  {^  paid  by  the 

said  (name  of  purchaser)  the  receipt  whereof  is  hereby  acknowledged,  do, 

by  these  presents,  give,  grant,  sell  and  convey  unto  the  said  (here  describe  carefully 
the  land  or  premises  granted,  by  metes  and  bounds,  and  contents  or  quantity,  or  bound- 
ary marks  or  monuments,  and  refer  to  the  deed  of  the  land  to  the  testator,  under  which 
he  held  it) 

To  Have  and  to  Hold  the  afore-granted  premises,  with  all  the  privileges 
and  appurtenances  to  the  same  belonging,  to  him  the  said  (name  of  pur- 

chaser) and  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  forever.  And  1 
the  said  (name  of  executor)  for  myself  and  my  heirs,  executors,  and  administrators, 
do  hereby  covenant  with  the  said  (name  of  purchaser)  and  his  heirs  and 

assigns,  that  in  pursuance  of  the  order  aforesaid,  I  gave  public  notice  of  the  said 
intended  sale,  in  manner  aforesaid,  and  that  I  took  the  oath  and  gave  the  bond 
by  law  required,  previous  to  fixing  on  the  time  and  place  of  sale. 


FOKMS   OF  DEEDS.  479 

In  Witness  Whereof,  I  the  said  executor  as  aforesaid, 

have  hereunto  set  my  hand  and  seal  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty 

(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  presence  of 

88.  A.D.  186        .    Then  personally  appeared 

the  above-named  execut  and  acknowledged  the  foregoing 

instrument  to  be  free  act  and  deed. 

Before  me, 

Justice  of  the  Peace. 


(131.) 

Deed  of  Executor^  in  Use  in  the  Middle  States. 

This  Indenture,  Made  the  day  of  in 

the  year  one  thousand  eight  hundred  and  between  (name 

of  executor)  executor  of  the  last  will  of  (name  and  residence  of  testator) 

of  the  first  part,  and  (name,  residence,  and  occupation  of  the  purchaser,  who 

is  the  grantee)  of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  by 
virtue  of  the  power  and  authority  to  him  given  in  and  by  the  said  last  will  and 
testament,  and  for  and  in  consideration  of  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  him  in  hand  paid  at  or  before  the 
ensealing  and  delivery  of  these  presents,  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  and  the  said  party  of  the  second  part,  his 
heirs,  executors,  and  administrators,  forever  released  and  discharged  from  the  same 
by  these  presents,  have  granted,  bargained,  sold,  aliened,  released,  conveyed  and 
confirmed,  and  by  these  presents  do  grant,  bargain,  sell,  alien,  release,  convey  and 
confirm,  unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns  forever, 
all  (here  describe  carefully  the  land  or  premises  granted,  by  metes  and  bounds,  and 
contents  or  quantity,  or  boundary  marlcs  or  monuments,  and  refer  to  the  deed  of  the 
land  to  the  testator,  under  which  he  held  it) 

Together  with  all  and  singular  the  edifices,  buildings,  rights,  members,  privi- 
leges, advantages,  hereditaments,  and  appurtenances  to  the  same  belonging  or  in 
any  wise  appertaining ;  and  the  reversion  and  reversions,  remainder  and  remain- 
ders, rents,  issues  and  profits  thereof.  And  also  all  the  estate,  right,  title,  interest, 
claim,  and  demand  whatsoever,  both  in  law  and  equity,  which  the  said  testator 
had  in  his  lifetime,  and  at  the  time  of  his  decease,  and  which  the  said  party  of  the 
first  part  hath,  by  virtue  of  the  said  last  will  and  testament,  or  otherwise,  of,  in, 
and  to  the  same,  and  every  part  and  parcel  thereof,  with  the  appurtenances :  To 
have  and  to  hold  the  said  premises  above  mentioned  and  described,  and  hereby 
granted  and  conveyed,  or  intended  so  to  be,  with  the  appurtenances,  unto  the  said 


480  DEEDS   CONVEYING  LAXD. 

party  of  the  second  part,  and  his  heirs  and  assigns,  to  his  and  their  only  proper  use, 
benefit  and  behoof  forever.  And  the  said  party  of  the  first  part,  for  himself  and 
for  his  heirs,  executors,  and  administrators,  does  for  himself  and  for  his  heirs, 
executors,  and  administrators,  covenant,  grant,  promise  and  agree  to  and  with  the 
said  party  of  the  second  part,  and  his  heirs  and  assigns,  that  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  shall  and  lawfully  may  from  time  to  tune,  and  at 
all  tunes  forever  hereafter,  peaceably  and  quietly  have,  hold,  use,  occupy,  possess,  and 
enjoy,  all  and  singular  the  said  hereditaments  and  premises  hereby  granted  and 
conveyed,  or  intended  so  to  be,  with  their  and  every  of  their  appurtenances, 
and  receive  and  take  the  rents,  issues,  and  profits  thereof,  to  and  for  his  and  their 
own  use  and  benefit,  without  any  lawful  let,  suit,  hindrance,  molestation,  interrup- 
tion or  denial  whatsoever,  of,  from,  or  by  them  the  said  party  of  the  first  part,  his 
heirs  or  assigns ;  or  of,  from,  or  by  any  other  person  or  persons  whomsoever  law- 
fully claiming,  or  who  shall  or  may  lawfully  claim  hereafter,  by,  from,  or  under 
him,  or  by,  from,  or  under  his  right,  title,  interest,  or  estate.  And  that  free  and 
clear,  and  freely  and  clearly  discharged,  acquitted  and  exonerated,  or  otherwise 
well  and  sufficiently  saved,  defended,  kept  harmless,  and  indemnified  by  them,  the 
said  party  of  the  first  part,  his  heirs  and  assigns,  of,  from,  and  against  ah1  and  all 
manner  of  former  and  other  gifts,  grants,  bargains,  sales,  mortgages,  judgments,  and 
all  other  charges  and  rncumbrances  whatsoever,  had,  made,  committed,  executed,  or 
done  by  him  the  said  party  of  the  first  part,  or  by,  through,  or  with  his  acte,  deeds, 
means,  consent,  procurement,  or  privity. 

In  Witness  AYhereofj  the  parties  to  these  presents  have  hereunto  inter- 
chan^eably  set  their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  party  of  the  first  part.)          (Seal.) 
(  Signature  of  party  of  the  second  part.)     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 


STATE  OF 

COTJXTY, 


!S3. 


This  day  personally  appeared  before  the  undersigned,  (name  and  office  of  the 
magistrate)  within  and  for  the  county  and  State  aforesaid,  (name  of  the  executor) 
executor  of  the  estate  of  (name  of  deceased)  deceased,  who  personally  known 
to  me  to  be  the  person  whose  name  as  such  is  subscribed  to  the  foregoing  deed,  as 
having  executed  the  same,  and  acknowledged  that  he  had  as  such  executor  sub- 
scribed to  the  foregoing  deed,  as  having  executed  the  same,  and  acknowledged  that 
he  had  as  such  executor  executed  the  same  for  the  uses  and  purposes  therein 
expressed. 

In  "Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 

at  my  office  in  said  county,  this  day  of  A.D.   18 

(Signature)     (Seal.) 


FOKMS  OF  DEEDS.  481 

(132.) 
Deed  of  Administrator  of  Intestate. 

This  Indenture,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  (name  and 

residence  of  administrator)  administrator  of  the  goods  and  estate  of  (name  of 

intestate)  of  who  died  intestate,  party  of  the  first  part,  and 

(name,  residence,  and  occupation  of  the  grantee)  of  the  County  of 
and  State  of  party  of  the  second  part  : 

Whereas,  at  the  term,  A.D.  18       of  the  court, 

within  and  for  the  County  of  and  State  of  ,  in  a 

certain  petition  or  cause  therein  pending,  in  which  the  said  (name  of  the 

grantor)  administrator  of  the  goods  and  estate  of  (name  of  the  deceased) 

deceased,  was  petitioner  and  (names  of  the  defendants  who  are  minor  children 

of  the  deceased,  and  of  the  widow  of  deceased,  and  of  the  guardian  of  the  minors) 
were  defendants,  the  following  order  and  decree  were  rendered,  that  is  to  say : 

STATE  OF  ,  ^ 

>-ss. 
COUNTY.  ) 

In  Court  Term  A.D.  186 

(name  of  the  administrator)  administrator  of  the  goods  and 

estate  of  (name  of  deceased)  deceased,  vs.        (names  of  the  defendants,  who 

should  be  the  widow  and  heirs  of  the  deceased) 

And  now  comes  the  petitioner  by  his  solicitor  and  presents  his  petition  herein, 
and  it  satisfactorily  appearing  to  the  court  that  the  defendants  have  been  duly 
served  with  summons  herein  by  the  sheriif  of  County,  and 

that  the  defendants  are  non-residents  of  the  State  of  , 

and  have  been  duly  notified  of  this  proceeding  by  publication  as  required  by  law, 
it  is  therefore  ordered  by  the  court,  that  the  said  defendants  be  called.  And  they, 
being  three  times  solemnly  called,  came  not,  nor  any  one  for  them,  but  herein 
failed  and  made  default ;  which  it  ordered  to  be  entered  of  record ;  and  it  further 
appearing  to  the  court  that  the  said  (names  of  defendants  who  are  minors)  are 

•  minors  and  have  a  guardian,  to  wit,  the  said  (name  of  the  guardian)  And 

afterwards  the  said  (name  of  guardian)  as  such  guardian  comes  and  files  his 

answer  herein,  neither  admitting  nor  denying  the  allegations  in  said  petition  con- 
tained, but  reserving  the  right  of  said  minor  by  requiring  proof.  And  this  cause 
having  been  brought  on  to  be  heard  upon  the  petition  herein  taken  as  confessed  by 
the  answer  of  said  guardian  and  the  exhibits  and  proofs,  and  the  testi- 

mony of  (name  of  the  witness  or  witnesses  called  in  the  case)  witness  duly 

sworn,  who  testified  herein  in  open  court,  and  it  satisfactorily  appearing  to  the 
court  from  the  evidence  that  the  said  (name  of  the  deceased)  departed  this 

life  on  or  about  the  day  of  A.D.  18       ,  leaving 

(name  of  his  widow)  his  widow  and  (names  of  his  children)  his  children 


482  DEEDS  CONVEYING  LAND. 

and  only  heirs  at  law ;  that  the  petitioner  herein  was  duly  appointed  administrator 
of  the  goods  and  estate  of  said  (name  of  deceased)  deceased,  and  that  letters 

of  administration  were  duly  granted  to  him  by  this  court,  bearing  date  on  the 
day  of  A.D.  186  ,  and  the  court  having  ascertained 

that  said  petitioner  as  aforesaid,  has  made  a  just  and  true  account  of  the  condition 
of  the  estate  of  said  deceased  to  this  court,  and  that  the  personal  estate  of  said 
deceased  is  not  sufficient  for  the  payment  of  the  debts  of  the  said  (name  of 

the  deceased)  deceased  ;  and  the  court  having  found  the  amount  of  the  deficiency 
aforesaid  to  be  the  sum  of  dollars,  besides  interest  and  costs,  and 

it  further  appearing  to  the  court  that  the  said  (name  of  the  deceased)  died 

seized  of  the  following-described  real  estate,  situate  in  the  County  of 
and  State  of  ,  to  wit  (here  describe  carefully  the  land  or  premises 

granted,  by  metes  and  bounds,  and  contents  or  quantity,  or  boundary  marks  or  monu- 
ments, and  refer  to  the  deed  of  the  land  to  the  deceased,  under  which  he  held  it)  and 
the  court  having  ascertained  that  it  will  be  necessary  to  sell  the  said  real  estate  to 
pay  the  deficiency  aforesaid,  with  the  expenses  of  administration  now  due  and  to 
accrue ;  it  is  therefore  ordered,  adjudged,  and  decreed,  that  the  said  petitioner  pro- 
ceed, according  to  law,  to  advertise  and  make  sale  of  the  real  estate  above 
described,  or  so  much  thereof  as  may  be  necessary  to  pay  the  debts  now  due  from 
said  estate,  and  the  costs  of  administration  now  due  and  to  accrue.  And  it  is 
ordered  and  decreed  by  the  court,  that  said  sale  shall  be  made  on  the  following 
terms;  viz.,  (here  set  forth  the  terms,  place,  time,  and  manner  of  the  sale  as  pre- 
scribed in  the  decree)  which  terms  shall  be  distinctly  set  forth  in  all  the  advertise- 
ments of  said  sale. 

It  is  further  ordered  that  upon  such  a,  sale  being  made,  that  said  (name  of 

said  administrator)  shall  make  and  execute  to  the  purchaser  or  purchasers  of  said 
real  estate,  good  and  sufficient  deed  or  deeds  to  convey  the  interest  of  said  deceased 
therein  at  the  time  of  his  decease,  and  that  said  (name  of  the  administrator) 

report  his  action  in  the  premises  with  all  convenient  speed.  And  it  is  further 
ordered,  that  his  cause  stand  continued  for  said  report. 

And  Whereas,  in  pursuance  of  said  order  and  decree,  the  said  party  of  the 
first  part  did  on  the  day  of  A.D.  18  ,  between  the 

hours  of  ten  o'clock  in  the  forenoon,  and  five  o'clock  in  the  afternoon  of  such  day, 
at  (place  of  sale)  expose  to  sale  by  public  vendue,  to  the  highest  bidder,  the 

lands  and  real  estate  so  ordered  to  be  sold,  in  said  decree,  having  first  given  notice 
of  the  time,  terms,  and  place  of  such  sale,  with  a  description  of  such  lands  and 
real  estate,  according  to  the  terms  and  requirements  of  said  order  and  decree,  and 
of  the  statute  regulating  such  sales,  as  will  more  fully  and  at  large  appear  by  the 
report  of  such  sale,  made  by  said  party  of  the  first  part,  as  administrator  as  afore- 
said, to  the  said  court. 

And  Whereas,  at  such  sale,  the  said  party  of  the  second  part  became  the 
purchaser  of  the  following-described  lands  and  real  estate,  being  the  highest  bidder 
therefor,  at  the  following  price ;  that  is  to  say  (here  state  ichat  part,  or  the  whole,  of 
the  above-described  lands  were  sold,  and  at  what  price) 


FORMS  OF  DEEDS.  483 

Now,  Therefore,  This  indenture  witnesseth  that  the  said  party  of  the  first 
part,  by  virtue  of  the  order  and  decree  aforesaid,  and  in  consideration  of  the 
premises,  and  for  the  further  consideration  of  the  sum  of  dollars, 

to  him  in  hand  paid  by  the  said  party  of  the  second  part,  the  receipt  of  which  is 
hereby  acknowledged,  has  granted,  bargained,  sold,  and  conveyed,  and  by  these 
presents  does  grant,  bargain,  sell,  and  convey  unto  the  said  party  of  the  second 
part,  heirs  and  assigns,  the  lands  and  real  estate  last  above  described  as  having 
been  sold  to  the  said  party  of  the  second  part,  to  have  and  to  hold  the  same  with 
all  the  appurtenances  thereunto  belonging,  or  in  any  wise  appertaining,  to  the  only 
proper  use,  benefit,  and  behoof,  of  the  said  party  of  the  second  part,  and  his  heirs 
and  assigns  forever.  And  the  said  party  of  the  first  part,  for  the  consideration 
aforesaid,  covenants  with  the  said  party  of  the  second  part,  and  his  heirs  and 
assigns,  that  he  has  in  all  respects  complied  with  the  order  and  decree  aforesaid, 
and  with  the  directions  of  the  law  generally  in  such  case  made  and  provided. 

In  Witness  Whereof,  The  said  party  of  the  first  part,  as  administrator  aa 
aforesaid,  has  hereunto  set  his  hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

Administrator  of  (name  of  deceased)  as  aforesaid. 

In  Presence  of 

STATE  OF  ,  J 

>ss. 
COUNTY,  y 

This  day  personally  appeared  before  the  undersigned, 

within  and  for  the  county  and  State  aforesaid,  executor 

of  the  estate  of  (name  of  deceased )  deceased,  who  personally  known 

to  me  to  be  the  person  whose  name  as  such  is  subscribed  to  the  foregoing  deed,  as 
having  executed  the  same,  and  acknowledged  that  he  had  as  such  executor 
subscribed  to  the  foregoing  deed,  as  having  executed  the  same,  and  acknowledged 
that  he  had  as  such  executor  executed  the  same  for  the  uses  and  purposes  therein 
expressed. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 

at  my  office  in  said  county,  this  day  of  A.D.  18 

(Signature.)     (Seal.) 

(133.) 

Deed  Poll  of  Guardian  of  a  Minor. 

Know  all  Men  by  these  Presents,  That  whereas  (name  of  guardian 
and  grantor)  of  in  the  County  of  and  State  of  ,  guardian 

of  (name  of  the  ward)  a  minor  child  of  (name  of  the  father  of  the  minor) 

by  an  order  of  the  probate  court,  held  at  within  and 

for          County  of  on  the  day  of  in  the 

year  one  thousand  eight  hundred  and  was  licensed  and  empowered  to 


484  DEEDS  CONVEYING  LAND. 

sell  and  pass  deeds  to  convey  certain  real  estate  of  the  said  minor ;  and  -whereas, 
I,  the  said  guardian,  having  given  public  notice  of  the  intended  sale,  by  causing 
notifications  thereof  to  be  published  once  a  week,  for  three  successive  weeks,  prior 
to  the  time  of  sale,  in  the  newspaper  called  the  printed 

at  and  having  first  taken  the  oath  and  given  the  bond  by  law  in 

such  cases  required,  did  on  the  day  of  in  the  year  one 

thousand  eight  hundred  and  pursuant  to  the  order  and  notice  aforesaid, 

sell  by  public  auction  the  real  estate  of  the  said  minor  hereinafter  described,  to 
(the  name,  residence,  and  occupation  of  the  purchaser  and  grantee)   for  the   sum  of 
dollars  loo  he  being  the  highest  bidder  therefor. 

N"ow,  Therefore,  Know  ye,  That  I,  the  said  (name  of  the  guardian 

and  grantor)  guardian  as  aforesaid,  by  virtue  of  the  power  and  authority  hi  me 
vested  as  aforesaid,  and  in  consideration  of  the  aforesaid  sum  of 
dollars  100  to  me  paid  by  the  said  the  receipt  whereof 

is  hereby  acknowledged,  do,  by  these  presents,  give,  grant,  sell,  and  convey  unto 
the  said  (name  of  the  purchaser  and  grantee)  a  certain  lot  or  parcel  of  land, 

situated,  bounded,  and  described  as  follows  (here  describe  the  premises  as  directed  in 
Form  107) 

To  Have  and  to  Hold  the  aforegranted  premises,  with  all  the  privileges 
and  appurtenances  to  the  same  belonging,  to  him  the  said  (purchaser's  name) 

and  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  forever.  And  I,  the 
said  (name  of  guardian)  for  myself,  my  heirs,  executors,  and  administrators, 

do  hereby  covenant  with  the  said  (name  of  purchaser)  and  his  heirs  and  assigns, 
that  in  pursuance  of  the  order  aforesaid,  I  gave  public  notice  of  the  said  intended 
sale,  in  manner  aforesaid,  and  that  I  took  the  oath  by  law  required,  previous  to 
fixing  on  the  time  and  place  of  sale,  and  gave  the  bond  previous  to  said  sale. 

In  Witness  Whereof,  I,  the  said  guardian  as 

aforesaid,  have  hereunto  set  my  hand  and  seal,  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal) 
Signed,  Sealed  and  Delivered  in  Presence  of 

ss.  A.D.  18      .    Then  personally  appeared 

the  above-named  guardian,  and  acknowledged  the 

foregoing  instrument  to  be  free  act  and  deed. 

Before  me,  Justice  of  the  Peace. 

(134.) 
Deed  of  Referee  on  Foreclosure,  in  Use  in  the  Middle  States. 

This  Indenture,  Made  the  day  of  in  the  year  one 

thousand  eight  hundred  and  between  (name  and  residence  of  the 

referee  and  grantor),  a  referee  duly  appointed  as  hereinafter  mentioned,  of  the 


FORMS  OF  DEEDS.  485 

first  part,  and  (name,  residence,  and  occupation  of  the  grantee)  of  the  second 

part. 

"Whereas  at  a  Term  of  the  (name  of  the  court)  court,  on  the 

day  of  one  thousand  eight  hundred  and  it 

was  among  other  things  ordered  and  adjudged  by  the  said  court,  in  a  certain  action 

then  pending  in  the  said  court,  between          (names  of  plaintiff'  and  defendant  in 

the  action) 

That  all  and  singular  the  mortgaged  premises  mentioned  in  the  complaint  in 
said  action,  and  in  said  judgment  described,  or  so  much  thereof  as  might  be  suffi- 
cient to  raise  the  amount  due  to  the  plaintiff  for  principal,  interest,  and  costs  in  said 
action,  and  which  might  be  sold  separately,  without  material  injury  to  the  parties 
interested,  be  sold  at  public  auction,  according  to  the  course  and  practice  of  said 
court,  by  or  under  the  direction  of  the  said  party  of  the  first  part  as  referee  thereby, 
duly  appointed  for  that  purpose  :  that  the  said  sale  be  made  (here  state  the 

directions  in  the  order  of  court  as  to  the  place  and  time  of  the  sale)  that  the  said 
referee  give  public  notice  of  the  time  and  place  of  such  sale,  according  to  the  course 
and  practice  of  said  court,  and  that  any  of  the  parties  in  said  action  might  become 
a  purchaser  or  purchasers  on  such  sale ;  that  the  said  referee  execute  to  the  pur- 
chaser or  purchasers  of  the  said  mortgaged  premises,  or  such  part  or  parts  thereof 
as  should  be  sold,  a  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  same : 

And  TVliereas,  the  said  referee,  in  pursuance  of  the  said  judgment  of  the 
said  court,  did  on  the  day  of  one  thousand  eight  hundred  and 

sell  at  public  auction  at  (the  place  ofsaley  the  premises  in  the  said 

judgment  mentioned,  due  notice  of  the  time  and  place  of  such  sale  being  first  given, 
agreeably  to  the  said  judgment;  at  which  sale  the  premises  hereinafter  described 
were  struck  off  to  the  said  party  of  the  second  part  for  the  sum  of 

dollars,  that  being  the  highest  sum  bidden  for  the  same.  Now  this  indenture  wit- 
nesseth,  that  the  said  referee,  the  party  of  the  first  part  to  these  presents,  hi  order 
to  carry  into  effect  the  sale  so  made  by  him  as  aforesaid,  in  pursuance  of  the 
judgment  of  the  said  court,  and  in  conformity  to  the  statute  in  such  case  made  and 
provided,  and  also  in  consideration  of  the  premises,  and  of  the  said  sum  of  money 
so  bidden  as  aforesaid,  being  first  duly  paid  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  hath  bargained  and  sold,  and  by  these 
presents  doth  grant  and  convey  unto  the  said  party  of  the  second  part,  the  premises 
aforesaid,  situate,  bounded,  and  described  as  follows  (describe  here  the  premises  sold 
as  directed  in  Form  107) 

To  Have  and  to  Hold  all  and  singular  the  premises  above  mentioned  and 
described,  and  hereby  conveyed,  or  intended  so  to  be,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  to  and  for  his  and  their  only  proper  use,  benefit, 
and  behoof. 

In  "Witness  "Whereof;  The  said  referee  as  aforesaid,  hath 

Hereunto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 

(Signature.)      (Seal.) 

Sealed  and  delivered  in  the  presence  of 


486  DEEDS  CONVEYING  LAND, 

STATE  OF 


.•S3. 

COUNTY. 

On  the  day  of  one  thousand  eight  hundred  and 

before  me  came  known  to  me  to  be  the  individual  described  in,  and 

who  executed  the  above  conveyance,  and  acknowledged  that  he  executed  the  same. 

(Signature.") 


(135.) 
Deed  of  Collector  of  Taxes. 

To  all  Persons  to  whom  these  Presents  shall  come,  I,         (name 
of  collector)  of  in  the  county  of  and  State  of 

collector  of  taxes  for  said  town  of  duly  chosen  and  qualified  at  the 

last  annual  meeting  of  the  inhabitants  of  said  town,  held  on  the  day 

of  last  past  sends  greeting  : 

Whereas,  the  assessors  of  said  town  of  (name  of  the  toicri)  in  their  list  of 

assessments  committed  to  me,  the  said  (name  of  the  collector)  to  collect,  have 

assessed  (name  of  the  parly  for  whose  taxes  the  land  is  sold)  a    resident  owner 

of  a  certain  tract  of  land  situated  in  said  bounded  and  described  as  follows, 

viz.  (describe  the  premises  as  directed  in  Form  107)  the  sum  of  (amount  of  tax) 
and  loo  dollars,  as  a  tax  on  said  premises  for  the  year  eighteen  hundred  and 

And  Whereas  I,  the  said  (name  of  collector)  have  demanded  payment 

of  said  tax  of  (name  of  party  taxed)  more  than  fourteen  days  before  proceed- 

ing to  advertise  and  sell  as  hereinafter  set  forth. 

And  Whereas  the  said  (name  of  the  party  taxed)  has  given  no  written 

authority  to  any  inhabitant  of  said  town,  as  his  attorney  to  pay  the  tax  imposed 
on  said  land,  and  no  mortgagee  of  said  land  has  given  written  notice  to  the  clerk 
of  said  town,  that  he  the  said  mortgagee  holds  a  mortgage  thereon,  nor  given 
written  authority  to  any  inhabitant  of  said  town  as  his  attorney,  to  pay  said  tax. 

And  Whereas  I,  the  said  having  given  public  notice  of  the  time 

and  place  of  sale  of  the  said  land,  for  the  non-pa yrnent  of  said  tax,  by  an  advertise- 
ment thereof  three  weeks  successively,  in  the  newspaper  called  the 
printed  and  published  in  in  said  county,  the  last  publication  of  said 

advertisement  being  one  week  before  the  time  of  said  sale  :  also  by  posting  a  like 
notice  on  said  land  three  weeks  before  the  time  of  said  sale  :  and  also  by  posting  a 
like  notice  (here  state  whatever  other  places  the  notice  teas  posted  at)  being  two 

public  places  in  said  town,  three  weeks  before  the  tune  of  said  sale,  which  notices 
severally  contained  the  name  of  the  said  (name  of  the  party  taxed)  and  the 

amount  of  the  tax  assessed  on  said  land ;  also  a  substantially  accurate  description 
of  said  land,  did,  on  the  day  of  instant,  pursuant  to  the  authority 


FOEMS  OF  DEEDS.  487 

and  notice  aforesaid,  no  person  appearing  to  pay  said  tax,  and  it  being  the  opinion 
of  me,  that  the  said  land  could  not  be  conveniently  divided  and  a  part  thereof  set 
off  without  injury  to  the  residue,  and  judging  it  to  be  most  for  the  public  interest 
to  sell  the  whole  of  said  land,  sell,  at  public  auction,  the  said  land  above  described, 
to  (name  of  purchaser  and  grantee)  for  the  sum  of  and  ioo  dollars, 

he  being  the  highest  bidder  therefor. 

Now  Therefore,  Know  Ye,  that  I  the  said  (name  of  the  collector) 

by  virtue  of  the  authority  in  me  vested  as  aforesaid,  and  in  consideration  of  the 
aforesaid  sum  of  and  ioo  dollars,  to  me  paid  by  the  said  (name 

of  the  purchaser)  the  receipt  whereof  is  hereby  acknowledged,  do  hereby  give,  grant, 
bargain,  sell,  and  convey  unto  the  said  all  that  said  tract  or  parcel  of 

land  above  mentioned  and  described,  with  the  appurtenances  thereto  belonging. 

To  Have  and  to  Hold  the  same  to  him,  the  said  grantee,  his  heirs  and 
assigns,  to  his  and  their  use  and  behoof  forever ;  subject,  nevertheless,  to  the  right 
of  redemption,  according  to  law. 

And  I,  the  said  grantor,  do  covenant  with  the  said  grantee,  his  heirs  and  assigns, 
that  in  making  the  said  sale  as  above  set  forth,  I  have  complied  with,  observed,  and 
obeyed  all  the  provisions  of  law  for  the  sale  of  real  estate  for  the  non-payment  of 
taxes. 

In  Witness  Whereof,  I,  the  said  collector,  have  hereto  set  my 

hand  and  seal,  this  day  of  in  the  year  eighteen  hundred 

and 

(Signature.)      (Seal.) 
Executed  and  delivered  in  the  presence  of 

STATE  OF  ,  ^ 

VSS. 

COUNTY.  )  A.D.  18 

Then  personally  appeared  the  above-named  collector,  and  acknowl- 
sdged  the  above  instrument  to  be  his  free  act  and  deed. 

Before  me,  Justice  of  the  Peace. 

(136.) 

Deed  of  Assignee,  in  Use  in  the  Western  States. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  (A.D.  18      ) 

between  (name,  residence  and  occupation  of  the  assignee  who  is  the  grantor) 

as  assignee  of  (name,  residence  and  occupation  of  the  assignor)  of  the  one 

part,  and  (name,  residence  and  occupation  of  the  purchaser  who  is  grantee) 

of  the  other  part : 

Whereas,  The  said  (name  of  the  assignor)  being  lawfully  seized  in 

his  demesne,  as  of  fee,  among  other  things,  of  and  in  a  certain  lot,  piece  or  parcel 
of  ground,  situate  in  the  County  of  and  State  of  , 


488  DEEDS   CONVEYING  LAND. 

known  and  described  as  follows,  to  wit  (here  describe  the  premises  as  in  Form  107). 
And  being  so  thereof  seized,  did,  on  or  about  the  day  of 

A.D.  one  thousand  eight  hundred  and  (A.D.  18        ), 

enter  into  a  written  contract  with  the  said  party  of  the  second  part  for  the  sale  of 
the  above-described  premises  for  the  sum  of  dollars. 

And  Whereas,  The  said  (name  of  the  assignor)  did,  by  his  certain 

deed  of  assignment,  bearing  date  the  day  of 

A.D.  18  ,  grant,  bargain,  sell,  alien,  remise,  release,  convey,  assign,  transfer  and 
set  over  (with  other  property)  the  above-described  lot,  piece  or  parcel  of  ground 
unto  the  said  party  of  the  first  part,  his  successors,  executors,  administrators  and 
assigns  forever,  in  trust  nevertheless,  to  and  for  the  uses  and  intent  and  purposes 
in  said  deed  of  assignment  mentioned  and  set  forth,  reference  thereto  being  had 
may  fully  and  at  large  appear ;  which  said  deed  of  assignment  is  recorded  in  Book 
page  of  deeds,  hi  the  office  of  the  clerk  of  the  Circuit 

Court  of  said  county,  and  ex-officio  recorder  of  deeds. 

And  Whereas,  The  said  assignor  did  not  comply  with 

the  said  contract  before  the  execution  and  delivery  of  the  said  deed  of  assignment 
to  the  said  party  of  the  first  part, 

Now  this  Indenture  Witnesseth,  That  the  said  (name  of  the 

assignee  and  grantor)  assignee  of  said  (name  of  the  assignor)  for  and  in 

consideration  of  the  sum  of  dollars  (being  the  balance  of  the  pur- 

chase money  and  interest  due  on  said  contract),  unto  him  in  hand  paid  by  the  said 
party  of  the  second  part,  at  and  before  the  ensealing  and  delivery  hereof,  the 
receipt  whereof  is  hereby  acknowledged,  by  these  presents  does  grant,  bargain,  sell, 
alien,  release  and  confirm  unto  the  said  party  of  the  second  part,  and  his  heirs 
and  assigns,  all  the  above  mentioned  and  described  lot,  piece  or  parcel  of 
ground,  together  with  all  and  singular  the  rights,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining,  and  all  the  estate,  right,  title, 
interest,  property,  claim  and  demand  whatever,  that  he  the  said  assignor  had  and 
held  at  and  immediately  before  the  execution  and  delivery  of  the  said  deed  of 
assignment  to  said  party  of  the  first  part,  and  also  all  the  right,  title,  interest, 
property,  claim  and  demand  whatever,  that  the  said  party  of  the  first  part  acquired 
in,  under  or  by  virtue  of  the  said  deed  of  assignment  by  said  assignor,  to  him,  the 
said  party  of  the  first  part.  To  have  and  to  hold  the  same,  together  with  all  and 
singular  the  appurtenances  and  privileges  thereunto  belonging,  or  in  any  wise 
appertaining,  and  all  the  estate,  right,  title,  interest  and  claim  whatsoever,  either 
in  law  or  equity,  that  said  assignor  had  and  held  at  the  tune  of  and  immediately 
preceding  the  execution  and  delivery  of  said  deed  of  assignment  to  the  said  party 
of  the  first  part,  and  all  the  right,  title  interest  and  claim  whatsoever  of  the  said 
party  of  the  first  part,  either  in  law  or  equity,  to  the  only  proper  use,  benefit  and 
behoof  of  the  said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

In  Witness  Whereof  The  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

(Signature  of  assignee.)     (Seal) 


POEMS  OF  DEEDS.  4S9 

STATE  OF 


NTT.       ) 


.•83. 

COUNTY. 

I|  a  in  and  for  said  county,  in  the 

aforesaid,  do  hereby  certify  that  who  is  personally  known  to 

me  as  the  real  person  whose  name  is  subscribed  to  the  within  deed,  appeared  before 
me  this  day,  in  person,  and  acknowledged  that  he  executed  and  delivered  the  said 
deed,  as  his  free  and  voluntary  act  for  the  uses  and  purposes  therein  set  forth. 
Given  under  my  hand  and  seal  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
(A.D.  18        ). 

(Signature.)     (Seal.) 

(137.) 

Acknowledgment  of  Grantor  and  Wife  identified,  before  Commis- 
sioner for  another  State. 


>  ss. 


STATE  OF 

COUNTY  OF 

Be  it  Remembered,  That  on  the  day  of  one 

thousand  eight  hundred  and  before  me,  commis- 

sioner for  the  State  of  (name  of  the  State  of  which  he  is  commissioner)  resident 

in  the  of  ,  duly  appointed,  commissioned,  and  sworn 

to  take  acknowledgments  and  proof  of  deeds  and  other  writings  in  the  State  of 
,  to  be  used  or  recorded  hi  the  said  State  of  (name  of  the 

State  of  which  he  is  commissioner)  and  to  administer  oaths  and  affirmations,  and  to 
take  depositions  in  the  said  State  of  ,  to  be  used  within  the  said  State 

of  appeared          (name  of  grantor)  and          (name  of  wife  of  grantor) 

hh  wife,  who  are  satisfactorily  proven  to  me  to  be  the  individuals  described  in,  and 
who  executed  the  within  deed,  from  said  (name  of  grantor)  and  wife  to 

(name  of  grantee)  by  the  oath  of  (witnesses  to  their  identity)  who  being  by 

me  duly  cautioned  and  sworn,  deposed  that  he  knew  them,  the  individuals,  then 
present,  to  be  the  persons  described  in,  and  who  executed  the  within  deed.  The 
said  and  his  wife,  then  and  there  acknowledged 

to  me  that  they  executed  the  said  deed  for  the  purposes  therein  mentioned ;  and 
the  said  (name  of  the  wife)  being  examined  by  me  privily,  and  apart 

from  her  said  husband,  and  the  contents  and  effect  of  the  said  deed  being  by  me 
first  duly  explained  to  her,  did  then  and  there  acknowledge  that  she  executed  the 
same  for  the  purposes  therein  mentioned,  freely  and  without  compulsion  of  or  from 
her  said  husband. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 
of  my  office,  on  the  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal.) 


490  MORTGAGES  OF  LAND. 

CHAPTER   XXX. 

MORTGAGES    OF 


THE  purpose  of  a  mortgage  is  to  give  to  a  creditor  the  security 
of  property.  It  is  very  similar  to  a  pledge,  although  not  the  same 
thing. 

Mortgages  are  now  made  of  personal  property,  as  well  as  of  real 
property  ;  but  we  will  consider  in  this  chapter  a  mortgage  of  real 
property  ;  or,  as  it  is  usually  called,  a  mortgage  deed. 

This  is  a  deed  conveying  the  land  to  the  creditor  as  fully,  and  in 
precisely  the  same  way,  as  if  it  were  sold  to  him  outright  ;  but  with 
an  addition.  This  consists  of  a  clause  inserted  before  the  clause  of 
execution,  to  the  effect,  that  if  the  grantor  (the  mortgagor)  shall 
pay  to  the  grantee  (the  mortgagee)  a  certain  amount  of  money  at  a 
certain  time,  then  the  deed  shall  be  void.  It  is  usually  expressed 
in  words  substantially  like  these  :  — 

"  Provided,  nevertheless,  that  if  the  said  A  B  (the  grantor),  his 
heirs,  executors,  or  administrators,  shall  pay  to  the  said  C  D  (the 
grantee),  his  executors,  administrators,  or  assigns,  the  sum  of 
$  -  with  interest  (semi-annually,  or  otherwise  as  agreed  on), 
on  or  before  the  -  day  of  -  ,  then  this  deed,  and  also  a  cer- 
tain promissory  note  signed  by  said  A  B,  whereby  said  A  B  promised 
to  pay  said  C  D,  or  his  order,  the  said  sum  at  the  said  time,  shall 
both  be  void  ;  and  otherwise  shall  remain  in  full  force." 

In  some  States  it  is  more  frequent  to  make  a  bond,  instead  of  a 
note,  to  be  secured  by  the  mortgage  ;  and  the  proviso  should  be 
altered  accordingly  ;  and  it  should  also  be  made  to  express  any  other 
terms  agreed  on.  Some  of  these  will  be  spoken  of  presently. 

In  law,  every  thing  is  a  mortgage  which  consists  of  a  valid  con- 
veyance, and  a  promise,  or  agreement,  which  may  be  on  the  same  or 
on  a  different  piece  of  paper  or  instrument,  providing  that  the  con- 
veyance shall  be  void  when  a  certain  debt  is  paid,  or  the  act  per- 
formed for  which  the  mortgage  is  security. 

The  mortgagee  has  now  a  title  to  the  land  ;  but  it  is  subject  to 


MOETGAGES  OP  LAND,  491 

avoidance  by  payment  of  the  debt.  Until  such  payment,  the  land  is 
his ;  and  all  the  mortgagor  owns  in  relation  to  it  is  a  right  to  pay  the 
debt  and  redeem  the  land.  Hence,  a  mortgagee  has  instantly  as 
good  a  right  to  take  possession  of  the  land  (unless,  as  is  now  com- 
mon, the  deed  provides  that  the  mortgagor  may  retain  possession) 
as  if  he  were  an  outright  purchaser. 

Formerly,  a  mortgagor  had  a  right  to  redeem  his  land  only  before 
or  when  the  debt  became  due ;  for,  if  he  did  not  pay  the  money 
when  it  was  due,  he  had  no  further  right.  But  courts  of  equity, 
deeming  this  too  hard,  allowed  him  a  further  time  to  redeem  it. 
And  courts  of  law  adopted  the  same  rule,  which  is  also  contained 
in  the  statutes  of  all  our  States.  This  right  to  redeem  is  called  a 
right  in  equity  to  redeem,  or,  more  briefly  and  commonly,  an  equity 
of  redemption ;  which  all  courts  now  regard  and  protect.  The 
mortgagor  may  sell  this  equity  of  redemption,  or  he  may  mortgage 
it  by  making  a  second  or  other  subsequent  mortgage  of  the  land, 
and  it  may  be  attached  by  creditors,  and  would  go  to  assignees  as  a 
part  of  his  property  if  he  became  insolvent.  The  time  within  which 
a  mortgagor  may  thus  redeem  his  land  is  usually  three  years. 

The  law  regards  this  equity  as  so  important,  that  it  will  not  per- 
mit a  party  to  lose  it  by  his  own  agreement.  Thus,  if  a  mortgagor 
agrees  with  the  mortgagee,  in  the  most  positive  terms,  or  in  any  way 
he  can  contrive,  or  for  any  consideration,  that  he  will  have  no  equity 
of  redemption,  and  that  the  mortgagee  may  have  possession  and 
absolute  title  as  soon  as  the  debt  is  due  and  unpaid,  the  law  sets 
aside  all  such  agreements,  and  gives  the  debtor  his  equity  of  redemp- 
tion for  three  years. 

Within  a  few  years,  however,  a  way  has  been  found  to  effect  this 
purpose  indirectly,  which  the  law  sanctions.  Many  persons  object 
to  lending  their  money  on  mortgage,  because  they  will  have  to  wait 
three  years  after  the  debt  is  due  before  the  land  can  be  certainly 
theirs.  But  it  is  now  quite  common  for  the  mortgage  deed  to  contain 
an  agreement  of  the  parties,  that,  if  the  money  is  not  paid  when  it  is 
due,  the  mortgagee  may,  in  a  certain  number  of  days  thereafter, 
sell  the  land  (providing  also  such  precautions  to  secure  a  fair  price 
as  may  be  agreed  on),  and,  reserving  enough  to  pay  his  debt  and 
charges,  pay  over  the  balance  to  the  mortgagor.  This  is  called,  a 
power  of  sale  mortgage. 

83 


492  MOETGAGES  OF  LAND. 

The  three  years  of  redemption  do  not  begin  from  the  day  when 
the  debt  is  due  and  unpaid,  unless  the  mortgagee  then  enters  and 
takes  possession  for  the  purpose  of  foreclosing  the  mortgage,  as  the 
legal  phrase  is ;  by  which  phrase  is  meant  extinguishing  the  equity 
of  redemption.  If  the  debt  has  been  due  a  dozen  years,  the  mort- 
gagor may  still  redeem,  unless  the  mortgagee  Has  entered  to  fore- 
close,  and  three  years  have  elapsed  afterwards. 

He  may  make  entry  for  this  purpose  in  a  peaceable  manner,  be- 
fore witnesses,  as  pointed  out  in  the  statutes  regulating  mortgages, 
or  by  an  action  at  law. 

If  the  mortgagor  redeems,  he  must  tender  the  debt,  with  interest, 
and  the  lawful  costs  and.  charges  of  the  mortgagee  ;  but  he  will  be 
allowed  such  rents  and  profits  as  the  mortgagee  has  actually  received, 
or  would  have  received  but  for  his  own  fault. 

It  is  commonly  thought  that  the  mortgagor  has  a  right  to  retain 
possession  until  the  debt  is  due  and  unpaid,  and  in  fact  he  usually 
does  so.  But  we  have  seen  that  the  mortgagee  has  just  as  much 
right  of  immediate  possession  as  a  buyer ;  and  therefore,  if  it  is  not 
intended  that  he  should  have  possession  at  once,  the  mortgage  deed 
ought  to  contain  a  clause  to  the  effect,  that  the  mortgagor  may  retain 
possession  as  long  as  he  pays  instalments  and  interest  as  due,  and 
complies  with  his  other  agreements. 

One  of  these  other  agreements,  which  is  now  very  common,  is  that 
the  mortgagor  shall  keep  the  premises  insured  in  a  certain  sum  for 
the  security  of  the  mortgagee ;  and,  if  there  be  such  an  agreement, 
it  should  be  expressed  in  the  deed.  Otherwise,  if  the  mortgagee 
insures  the  house,  he  cannot  charge  the  premium  to  the  mortgagor. 

If  a  mortgagor  erects  buildings  on  the  mortgaged  land,  or  puts 
fixtures  there,  and  the  mortgagee  takes  possession  of  the  land,  and 
forecloses  the  mortgage,  he  gets  all  these  additions.  If  the  mort- 
gagee puts  them  on  the  land,  and  the  mortgagor  redeems,  he  gets 
the  benefit  of  them  all,  without  paying  the  mortgagee  for  them. 
Such  is  the  effect  of  the  law  if  there  be  no  bargain  between  the  par- 
ties about  these  things.  But  they  may  make  any  bargain  about 
them  they  choose  to  make. 

The  remarks  which  were  made  at  the  close  of  the  preceding  chap- 
ter (just  before  the  forms),  concerning  the  various  Forms  of  deeds 


FORMS  OF  MOETGAGES,  ETC.  493 

conveying  land,  apply  with  equal  force  to  deeds  of  mortgage  of 
land ;  and  I  refer  to  them  now  because  they  are  equally  necessary  to 
the  proper  understanding  and  use  of  the  following  Forms. 


(138.) 

A  Promissory  Note,  to  be  secured  by  Mortgage. 

18 

for  value  received  promise 

to  pay  to  dollars,  at 

with  interest  at  the  rate  of  per  cent  per  annum 

This  note  is  secured  by  a  deed  of  mortgage  of  even  date  herewith,  from 
to  which  is  duly  stamped  according  to  the  internal  revenue 

law. 

$  (Signature.) 

(139.) 

Bond,  to  be  secured  by  a  Mortgage* 

Know  all  Men  by  these  Presents,  That  I  (name  of  obligor) 

of  in  the  County  of  and  State  of  , 

am  held,  bound  and  obliged  unto  (name  of  obligee)  of  in  the 

County  of  and  State  of  ,  in  the  sum  of 

(penalty,  usually  twice  as  much  as  the  actual  debt)  to  be  paid  to  the  said  (the 

obligee)  his  executors,  administrators,  heirs  or  assigns,  and  to  tliis  payment  I  hereby 
bind  myself,  my  heirs,  executors  and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal,  this  day  of  in  the 

year 

The  Condition  of  the  above  obligation  is  such,  that  if  I  the  said  (name 

of  the  obligor)  or  my  heirs,  executors  or  administrators,  shall  pay  or  cause  to  be 
paid  unto  the  said  (name  of  the  obligee)  the  sum  of  (here  insert  the 

amount  of  the  debt  or  sum  to  be  secured)  on  the  day  of 

in  the  year  ,  with  interest  at  per  cent,  payable  six 

months  from  the  date  hereof,  and  every  six  months  afterwards,  until  the  said  sum 
is  paid,  then  the  above  obligation  shall  be  void  and  of  no  effect ;  and  otherwise  it 
shall  remain  in  full  force.  And  I  further  agree  and  covenant,  that  if  any  payment 
of  interest  be  withheld  or  delayed  for  days  after  such  payment  shall 

fall  due,  the  said  principal  sum  and  all  arrearage  of  interest  thereon,  shall  be  and 
become  due  immediately  on  the  expiration  of  days,  at  the  option 

of  said  (name  of  the  obligee)  or  his  executors  or  administrators. 

(Signature.)     (Seal.) 
(Witness.) 


494  MOKTGAGES  OF  LAND. 


(140.) 

Mortgage  without  Power  of  Sale  and  without  Warranty,  but  with 
release  of  Homestead  and  of  Dower. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  sixty-  between         (name, 

ivsidence  and  occupation  of  mortgagor)  and  (name  of  wife)  wife  of  said 

(name  of  mortgagor)  parties  of  the  first  part,  and  (name,  residence  and  occu- 

pation of  mortgagee)  party  of  the  second  part, 

Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the  said  party 
of  the  second  part,  in  the  sum  of  secured  to  be  paid  by  a 

certain  promissory  note  (or  bond)  (describe  the  note  or  bond) 

Now,  Therefore,  this  Indenture  Witnesseth,  That  the  said  parties 
of  the  first  part,  for  the  better  securing  the  payment  of  the  money  aforesaid,  with 
interest  thereon,  according  to  the  tenor  and  efiect  of  the  said  note  (or  bond)  above 
mentioned ;  and  also  in  consideration  of  the  further  sum  of  one  dollar  to  us  in  hand 
paid  by  the  said  party  of  the  second  part,  at  the  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  have  granted,  bargained,  sold  and  con- 
veyed, and  by  these  presents  do  grant,  bargain,  sell  and  convey  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns  forever,  all  that  (here  describe  the  premises 
as  directed  in  Form  107  of  deeds  of  land) 

To  Have  and  to  Hold  the  Same,  Together  with  all  and  singular  the 
tenements,  hereditaments,  privileges  and  appurtenances  thereunto  belonging  or  in 
any  wise  appertaining.  And  also  all  the  estate,  interest  and  claim  whatsoever  in 
law  as  well  as  in  equity,  which  the  parties  of  the  first  part  have  in  and  to  the 
premises  hereby  conveyed  unto  the  said  party  of  the  second  part,  and  his  heirs  and 
assigns,  and  to  their  only  proper  use,  benefit  and  behoof.  And  the  said  parties  of 
the  first  part  hereby  expressly  waive,  release,  relinquish  and  convey  unto  the  said 
party  of  the  second  part  and  his  heirs,  executors,  administrators  and  assigns,  ah1 
right,  title,  claim,  interest  and  benefit  whatever,  in  and  to  the  above-described  prem- 
ises, and  each  and  every  part  thereof,  which  is  given  by  or  results  from  all  laws  of 
this  State  pertaining  to  the  exemption  of  homesteads. 

Provided  Always,  and  these  Presents  are  upon  this  Express 
Condition,  That  if  the  said  party  of  the  first  part,  or  his  heirs,  executors  or 
administrators  shall  well  and  truly  pay  or  cause  to  be  paid  to  the  said  party  of  the 
second  part  or  his  heirs,  executors,  administrators  or  assigns,  the  aforesaid  sum  of 
money,  with  such  interest  thereon,  at  the  time  and  in  the  manner  specified  La  the 
above-mentioned  note  (or  bond)  according  to  the  true  intent  and  meaning  thereof, 


FORMS  OF  MORTGAGES,   ETC..  495 

then  hi  that  case,  these  presents  and  every  thing  herein  expressed  shall  be  abso- 
lutely null  and  void. 

In  Witness  Whereof,  The  said  parties  of  the  first  part  hereunto  set  their 
hand  ^and  seal    the  day  and  year  first  above  written. 

(Signature  of  mortgagor.)  (Seal.) 

(Signature  of  wife  of  mortgagor.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

STATE  OF  ") 

>•  88. 

COUNTY.    ) 

I  in  and  for  the  said  county,  in  the  State 

aforesaid,  do  hereby  certify  that  (name  of  mortgagor)  personally  known 

to  me  as  the  same  person  whose  name  is  subscribed  to  the  foregoing  mortgage, 
appeared  before  me  this  day  in  person,  and  acknowledged  that  he  signed,  sealed 
and  delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for 
the  uses  and  purposes  therein  set  forth. 

And  the  said  (name  of  wife)  wife  of  the  said  (name  of  mortgagor) 

having  been  by  me  examined,  separate  and  apart,  and  out  of  the  hearing  of  her 
husband,  and  the  contents  and  meaning  of  said  instrument  of  writing  having  been 
by  me  made  known  and  fully  explained  to  her,  and  she  also  by  me  being  fully 
informed  of  her  rights  under  the  homestead  laws  of  this  State,  acknowledged  that 
she  had  freely  and  voluntarily  executed  the  same,  and  relinquished  her  dower  to 
the  lands  and  tenements  herein  mentioned,  and  also  all  her  rights  and  advantages 
under  and  by  virtue  of  all  laws  of  this  State  relating  to  the  exemption  of  home- 
steads, voluntarily  and  freely  and  without  the  compulsion  of  her  said  husband,  and 
that  she  does  not  wish  to  retract  the  same. 

Given  under  my  hand  and  official  seal  this  day  of 

A.D.  186 

(Signature.)     (Seal.) 

(141.) 

Mortgage,  with  Power  of  Sale,  to  secure  a  Bond,  without  Release 

of  Dower. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name,  residence, 

and  occupation  of  mortgagor)  party  of  the  first  part,  and         (name,  residence,  and 
occupation  of  mortgagee)  party  of  the  second  part;  Whereas,  the  said  (name 

of  mortgagor)  is  justly  indebted  to  the  said  party  of  the  second  part,  in  the  sum 
of  lawful  money  of  the  United  States,  secured  to  be  paid 

by  a  certain  bond  or  obligation  bearing  even  date  with  these  presents,  in  the  penal 
Bum  of  dollars,  lawful  money  as  aforesaid,  conditioned  for  the 

payment  of  the  said  first-mentioned  sum  of  (here  state  the  amount  due  on  the  bond, 


496  MORTGAGES  OF  LAND. 

and  the  lime  and  terms  of  payment)  as  by  the  said  bond  or  obligation,  and  the  con- 
dition thereof,  reference  being  thereunto  had,  may  more  fully  appear. 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the 
condition  of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the 
true  intent  and  meaning  thereof,  and  also  for  and  hi  consideration  of  the  sum  of 
one  dollar  to  him  in  hand  paid  by  the  said  party  of  the  second  part,  at  or  before 
the  ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  granted,  bargained,  sold,  aliened,  released,  conveyed,  and  confirmed,  and 
by  these  presents  does  grant,  bargain,  sell,  alien,  release,  convey,  and  confirm  unto 
the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns  forever,  all  (her* 
describe  the  premises  as  directed  in  Form  107,  deeds  of  land) 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof:  and  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and  to 
the  same,  and  every  part  and  parcel  thereof  with  the  appurtenances :  To  have  and 
to  hold  the  above  granted,  bargained,  and  described  premises,  with  the  appurte- 
nances, unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to  his  and 
their  own  proper  use,  benefit,  and  behoof  forever. 

Provided  Always,  and  these  presents  are  upon  this  express  condition,  that 
if  the  said  party  of  the  first  part,  or  his  heirs,  executors,  or  administrators,  shall 
well  and  truly  pay  unto  the  said  party  of  the  second  part,  or  his  executors, 
administrators,  or  assigns,  the  said  sum  of  money  mentioned  in  the  condition  of 
the  said  bond  or  obligation  and  the  interest  thereon,  at  the  time  and  in  the  manner 
mentioned  hi  the  said  condition  according  to  the  true  intent  and  meaning  thereof, 
that  then  these  presents,  and  the  estate  hereby  granted,  shall  cease,  determine,  and 
be  void.  And  the  said  (name  of  mortgagor)  for  himself  and  his  heirs, 

executors,  and  administrators,  does  covenant  and  agree,  to  pay  unto  the  said  party 
of  the  second  part,  or  his  executors,  administrators,  or  assigns,  the  said  sum  of 
money  and  interest  as  mentioned  above  and  expressed  hi  the  condition  of  the  said 
bond.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money 
above  mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof, 
that  then  and  from  thenceforth,  it  shall  be  lawful  for  the  said  party  of  the  second 
part,  or  his  executors,  administrators,  or  assigns,  to  enter  into  and  upon  all  and  singu- 
lar the  premises  hereby  granted  or  intended  so  to  be,  and  to  sell  and  dispose  of  the 
same,  and  all  benefit  and  equity  of  redemption  of  the  said  party  of  the  first  part, 
or  his  heirs,  executors,  administrators,  or  assigns  therein,  at  public  auction.  And 
out  of  the  money  arising  from  such  sale,  to  retain  the  principal  and  interest,  which 
shall  then  be  due  on  the  said  bond  or  obligation,  together  with  the  costs  and 
charges  of  advertisement  and  sale  of  the  same  premises,  rendering  the  overplus  of 
the  purchase-money  (if  any  there  shall  be),  unto  the  said  (name  of  mortgagor) 


FORMS   OF  MORTGAGES,  ETC.  497 

party  of  the  first  part,  or  his  heirs,  executors,  administrators,  or  assigns,  which 
sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar,  both  in  law  and  equity,  against 
the  said  party  of  the  first  part,  and  his  heirs  and  assigns,  and  all  other  persons 
claiming  or  to  claim  the  premises,  or  any  part  thereof,  by,  from,  or  under  him  or 
them,  or  any  of  them. 

In  Witness  Whereofj  The  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  mortgagor.)     (Seal.) 
(Signature  of  mortgagee.)     (Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

STATE  OP  ") 

Vss. 
COUNTY  OF  } 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came        (names  of  both  parties)  who 

are  known  to  me  to  be  the  individuals  described  in,  and  who  executed  the  forego- 
ing instrument,  and  acknowledged  that  they  executed  the  same. 

(Signature.) 

(142.) 
Mortgage  to  secure  a  Debt,  with  Power  of  Sale.     Short  Form. 

This  Indenture,  Made  the  day  of  in  the 

rear  one  thousand  eight  hundred  and  between  (name,  residence, 

and  occupation  of  mortgagor)  party  of  the  first  part,  and  (name,  residence,  and 
occupation  of  mortgagee)  party  of  the  second  part,  witnesseth,  that  the  said  party 
of  the  first  part,  in  consideration  of  the  sum  of  (the  amount  of  the  debt)  to 

him  duly  paid  before  the  delivery  hereof,  has  bargained  and  sold,  and  by  these 
presents  does  grant  and  convey  to  the  said  party  of  the  second  part,  and  his  heirs 
and  assigns  forever,  all  (here  describe  the  premises  as  directed  in  Form  107  of  deeds 
of  land)  with  the  appurtenances,  and  all  the  estate,  right,  title,  and  interest  of  the 
said  party  of  the  first  part  therein. 

This  Grant  is  intended  as  a  security  for  the  payment  of  (here  describe 

the  debt)  which  payments,  if  duly  made,  will  render  this  conveyance  void.  And  if 
default  shall  be  made  in  the  payment  of  the  principal  or  interest  above  mentioned, 
then  the  said  party  of  the  second  part,  or  his  executors,  administrators,  or  assigns, 
are  hereby  authorized  to  sell  the  premises  above  granted,  or  so  much  thereof  as 
will  be  necessary  to  satisfy  the  amount  then  due,  with  the  costs  and  expenses 
allowed  by  law. 

In  Witness  Whereof,  the  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written.  nature  )  (Seal ) 

Sealed  and  Delivered  in  the  Presence  of 


498  MORTGAGES  OF  LAND. 

STATE  OF 


.•88. 

COUNTY  OF 

On  the  day  of  in  the  year  ont  thousand 

eight  hundred  and  before  me  personally  came  (name  of 

mortgagor), -who  is  known  to  me  to  be  the  individual  described  in,  and  who  exe- 
cuted, the  foregoing  instrument,  and  acknowledged  that  he  executed  the  same,  as 
his  free  act  and  deed. 

(Signature.) 

(143.) 
Mortgage  to  secure  a  Debt,  fuller  Form,  with  Power  of  Sale. 

This  Indenture,  Made  the                              day  of  in  the 

year  one  thousand  eight  hundred  and                       between  (name,  residence, 

and  occupation  of  mortgagor)  party  of  the  first  part,  and  (name,  residence,  and 
occupation  of  the  mortgagee)  party  of  the  second  part: 

"Whereas,  the  said  party  of  the  first  is  justly  indebted  to  the  said  party  of  the 
second  part  in  (here  describe  the  amount  and  terms  of  the  debt,  or  note,  or  bond) 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  debt  (or  note,  or  bond )  above  described,  according  to 
the  true  intent  and  meaning  thereof,  and  also  for  and  in  consideration  of  the  sum 
of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the  second  part,  at  or  before 
the  ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed,  and  con- 
firmed, and  by  these  presents  does  grant,  bargain,  sell,  alien,  remise,  release, 
convey,  and  confirm,  unto  the  said  party  of  the  second  part,  and  to  his  heirs  ami 
assigns  forever,  all  (here  describe  the  premises  as  directed  in  Form  107,  deeds  of 
land) 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  an^ 
reversions,  remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim  and  demand  what- 
soever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and 
to  the  same,  and  every  part  and  parcel  thereof  with  the  appurtenances :  To  have 
and  to  hold  the  above  granted,  bargained  and  described  premises,  with  the  appur 
tenances,  unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to  his 
and  their  own  proper  use,  benefit,  and  behoof  forever. 

Provided  Always,  and  these  presents  are  upon  this  express  condition,  thai 
if  the  said  party  of  the  first,  or  his  heirs,  executors,  or  administrators,  shall  well 
and  truly  pay  to  the  said  party  of  the  second  part,  or  his  Lairs,  executors,  adminis 
trators,  or  assigns,  the  above-described  debt  (or  note,  or  bond)  according  to  tenufr 


FORMS  OF  MORTGAGES,  ETC.  499 

and  tenor  thereof,  then  this  deed  (and  also  said  debt  or  note  or  bond)  shall  be 
wholly  discharged  and  void ;  and  otherwise  shall  remain  in  full  force  and  effect. 
And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money  above 
mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  that 
then  and  from  thenceforth  it  shall  be  lawful  for  the  said  party  of  the  second  part, 
or  his  executors,  administrators,  and  assigns,  to  enter  into  and  upon  all  and  singu- 
lar the  premises  hereiy  granted,  or  intended  so  to  be,  and  to  sell  and  dispose  of  the 
same,  and  all  benefit  and  equity  of  redemption  of  the  said  party  of  the  first  part, 
or  his  heirs,  executors,  administrators,  or  assigns,  therein,  at  public  auction,  accord- 
ing to  the  act  in  such  case  made  and  provided.  And  as  the  attorney  of  the  said 
party  of  the  first  part,  for  that  purpose  by  these  presents  duly  authorized,  constituted, 
and  appointed,  to  make  and  deliver  to  the  purchaser  or  purchasers  thereof,  a 
good  and  sufficient  deed  or  deeds  of  conveyance  in  the  law  for  the  same,  in  fee 
simple,  and  out  of  the  money  arising  from  such  sale,  to  retain  the  principal  and 
interest  which  shall  then  be  due  on  the  said  debt  (or  note  or  bond)  together  with 
the  costs  and  charges  of  advertisement  and  sale  of  the  said  premises,  rendering  the 
overplus  of  the  purchase-money  (if  any  there  shall  be),  unto  the  said  party  of  the 
first  part,  or  his  heirs,  executors,  administrators,  or  assigns ;  which  sale,  so  to  be 
made,  shall  forever  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said 
party  of  the  first  part,  or  his  heirs  and  assigns,  and  all  other  persons  claiming  or  to 
claim  the  premises  or  any  part  thereof,  by,  from,  or  under  him,  them,  or  either  of 
them. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  mortgagor.)     (Seal.) 
(Signature  of  mortgagee.)     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

STATE  OF  ) 

>-  88. 

COUNTY  OF  ) 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came         (names  of  both  parties) -who 

are  known  to  me  to  be  the  individuals  described  in,  and  who  executed  the  forego- 
ing instrument,  and  acknowledged  that  they  executed  the  same. 

(Signature.) 

(144.) 

Deed  Poll  of  Mortgage,  with  Power  to  sell,  and  Insurance  Clause, 
and  Release  of  Dower  and  Homestead. 

Know  all  Men  by  these  Presents,  That  I  (name,  residence  and 

occupation  of  mortgagor)  in  consideration  of  to  me  paid  by        (name, 

residence  and  occupation  of  mortgagee)  the  receipt  whereof  is  hereby  acknowledged, 


500  MORTGAGES  OF  LAND. 

do  hereby  give,  grant,  bargain,  sell,  and  convey  unto  the  said  (name  of  mort- 

gagee) all  that  lot  or  parcel  of  land,  with  all  the  buildings  thereon  standing,  situated 
in  the  town  (or  city)  of  County,  of  State  of 

and  bounded  and  described  as  follows;  that  is  to  sa.y(here  describe  the  premises  as 
directed  in  Form  107,  in  chapter  on  deeds  of  land.) 

To  Have  and  to  Hold  the  afore-granted  premises,  with  the  privileges, 
easements,  and  appurtenances  thereto  belonging,  to  the  said  grantee,  and  to  his 
heirs  and  assigns,  to  their  use  forever. 

And  I  the  said  grantor,  for  myself  and  my  heirs,  executors  and  administrators, 
do  covenant  with  the  said  grantee,  and  his  heirs  and  assigns,  that  I  am  lawfully 
seized  in  fee  of  the  afore-granted  premises ;  that  they  are  free  from  all  incum- 
brances  (if  any  incumbrance  exists,  say  " except  as  follows"  and  describe  the 
incumbrance,)  that  I  have  good  right  to  sell  and  convey  the  same  to  the  said 
grantee,  and  his  heirs  and  assigns  as  aforesaid ;  and  that  I  will,  and  my  heirs,  ex- 
ecutors, and  administrators  shall  warrant  and  defend  the  same  to  the  said  grantee, 
and  his  heirs  and  assigns  forever,  against  the  lawful  claims  of  all  persons. 

Provided  Nevertheless,  That  if  the  said  grantor,  or  his  heirs,  executors, 
or  administrators,  shall  pay  unto  the  said  grantee,  or  his  executors,  administrators 
or  assigns,  the  sum  of  dollars  HK> 

in  days  (or  months)  from  the  day  of  the  date  hereof,  with  interest 

on  said  sum  at  the  rate  of  per  centum,  per  annum,  payable  (semi-annually) 

and  until  such  payment  keep  the  buildings  standing  on  the  land  aforesaid  insured 
against  fire,  in  a  sum  not  less  than  dollars,  for  the  benefit  of 

said  mortgagee  and  payable  to  him  in  case  of  loss,  at  some  insurance  office  approved 
by  said  mortgagee;  or  in  any  default  thereof,  shall  on  demand  pay  to  said  mortga- 
gee all  such  sums  of  money  as  the  said  mortgagee  shall  reasonably  pay  for  such 
insurance,  with  interest,  and  also  pay  all  taxes  levied  or  assessed  upon  the  said 
premises,  then  this  deed,  as  also  (a  certain  bond  or)  a  certain  promissory  note, 
bearing  even  date  with  these  presents,  signed  by  the  said  mortgagor,  whereby  for 
value  received  he  promises  to  pay  the  said  mortgagee  or  his  order,  the  said  sum 
and  interest,  at  the  time  aforesaid,  shall  both  be  absolutely  void  to  all  intents  and 
purposes. 

But  if  default  shall  be  made  in  the  payment  of  the  money  above  mentioned,  or 
the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  then  it  shall  be 
lawful  for  the  said  grantee,  or  his  executors,  administrators,  or  assigns  to  sell  and 
dispose  of  all  and  singular  the  premises  hereby  granted  or  intended  to  be  granted, 
and  all  benefit  and  equity  of  redemption  of  the  said  (name  of  the  mortgagor) 
the  grantor,  his  heirs,  executors,  administrators,  or  assigns  therein,  at  public  auction ; 
such  sale  to  be  on  or  near  the  premises  hereby  granted  ;  first  giving  notice  of  the 
time  and  place  of  sale,  by  publishing  the  same  once  each  week,  in  three  successive 
weeks,  in  (name  of  the  newspaper)  a  newspaper  printed  in  the  county  of 
aforesaid ;  and  in  his  or  their  own  names,  or  as  the  attorney  of  the  said  (name 
of  mortgagor)  the  grantor,  for  that  purpose  by  these  presents  duly  authorized,  con- 
stituted and  appointed,  to  make  and  deliver  to  the  purchaser  or  purchasers  thereof, 


FOEMS  OF  MORTGAGES,   ETC.  501 

a  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  same  in  fee  sin  pie ;  and 
out  of  the  money  arising  from  such  sale,  to  retain  the  said  sum  of 
dollars,  or  the  part  thereof  remaining  unpaid,  and  also  the  interest  then  due  on  the 
same,  together  with  the  costs  and  charges  of  advertising  and  selling  the  same 
premises ;  rendering  the  surplus  of  the  purchase-money,  if  any  there  be,  over  and 
above  said  sum  and  interest  as  aforesaid,  together  with  a  true  and  particular 
account  of  said  sale  and  charges,  to  the  said  (name  of  the  mortgagor)  the  grantor, 
his  heirs,  executors,  administrators,  or  assigns ;  which  sale,  so  to  be  made,  shall 
forever  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said  (name  of 

the  mortgagor)  the  grantor,  and  his  heirs  and  assigns,  and  all  other  persons  claim- 
ing or  to  claim  the  premises,  or  any  part  thereof,  by,  from,  or  under  him,  them,  or 
any  of  them. 

And  Provided  Also,  That  until  some  breach  of  the  condition  of  this  deed, 
the  grantee  shall  have  no  right  to  enter  and  take  possession  of  the  premises,  and 
hold  the  same. 

In  "Witness  Whereof,  "We  the  said  (name  of  mortgagor)  and  (name  of 
his  wife)  wife  of  the  said  (name  of  mortgagor)  in  token  of  her  release  of  all  right 
and  title  of  or  to  both  dower  and  homestead  in  the  granted  premises,  have  hereunto 
set  our  hands  and  seals  this  day  of  in  the 

year  of  our  Lord  eighteen  hundred  and 

(Signature  of  mortgagor.)  (Seal.) 

(Signature  of  wife  of  mortgagor.)     (Seal.} 

Executed  and  Delivered  in  Presence  of 

> 

S3.  18 

Then  personally  appeared  the  above-named  and  acknowl- 

edged the  above  instrument  to  be  free  act  and  dee£,  before  me, 

Justice  of  the  Peace. 


(145.) 

Mortgage  by  Indenture,  with  Power  of  Sale  and  Interest  and 
Insurance  Clause,  to  secure  a  Bond. 

This  Indenture,  Made  the  day  of  in  the  year  one 

thousand  eight  hundred  and  between  (name,  residence,  and 

occupation  of  the  mortgagor)  party  of  the  first  part,  and  (name,  residence,  and  occu- 
pation of  the  mortgagee)  party  of  the  second  part : 

Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the  said  party 
of  the  second  part,  in  the  sum  of  (amount  of  debt  due  on  the  bond)  dollars 

lawful  money  of  the  United  States,  secured  to  be  paid  by  his  certain  bond  or  obli- 


502  MORTGAGES  OP  LAND. 

gation  bearing  even  date  with  these  presents,  in  the  penal  sum  of  (amount 

of  penalty)  lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said  first- 
men  tioned  sum  of  (amount  of  debt  due  on  the  bond)  lawful  money  as  aforesaid, 
to  the  said  party  of  the  second  part,  or  his  executors,  administrators,  or  assigns,  on 
the  day  of  which  will  be  in  the  year  one  thousand  eight 
hundred  and  and  interest  thereon  to  be  computed  from 
at  and  after  the  rate  of  per  cent  per  annum,  and  to  be  paid  (here  set 
forth  the  time  and  terms  of  the  payment ) 

And  it  is  Thereby  Expressly  Agreed,  That  should  any  default  be  made 
in  the  payment  of  the  said  interest,  or  of  any  part  thereof,  on  any  day  whereon  the 
same  is  made  payable,  as  above  expressed,  and  should  the  same  remain  unpaid  and 
in  arrear  for  the  space  of  days,  then  and  from  thenceforth,  that  is  to 

say,  after  the  lapse  of  the  said  days,  the  aforesaid  principal  sum  of 

(amount  of  the  debt)  with  all  arrearage  of  interest  thereon,  shall,  at  the  option 
of  the  said  party  of  the  second  part,  or  his  executors,  administrators,  or  assigns, 
become  and  be  due  and  payable  immediately  thereafter,  although  the  period  above 
limited  for  the  payment  thereof  may  not  then  have  expired,  any  thing  thereinbefore 
contained,  to  the  contrary  thereof  in  any  wise  notwithstanding : 

As  by  the  said  bond  or  obligation,  and  the  condition  thereof,  reference  being 
thereunto  had,  may  more  fully  appear.  Now  this  indenture  witnesseth,  that  the 
said  party  of  the  first  part,  for  the  better  securing  the  payment  of  the  said  sum  of 
money  mentioned  hi  the  condition  of  the  said  bond  or  obligation,  with  interest 
thereon,  according  to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  con- 
sideration of  the  sum  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold,  aliened,  released, 
conveyed,  and  confirmed,  and  by  these  presents  does  grant,  bargain,  sell,  alien, 
release,  convey,  and  confirm  unto  the  said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  forever,  all  (here  describe  carefully  the  land  or  premises  granted,  as 
directed  in  Form  107,  deeds  of  land) 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof:  and  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and  to  the 
same,  and  every  part  and  parcel  thereof  with  the  appurtenances  :  to  have  and  to 
hold  the  above  granted,  bargained,  and  described  premises,  with  the  appurte- 
nances, unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to  his  and  their 
own  proper  use,  benefit,  and  behoof  forever : 

Provided  Always,  and  these  presents  are  upon  this  express  condition,  that 
if  the  said  party  of  the  first  part,  his  heirs,  executors,  or  administrators,  shall  well 
and  truly  pay  unto  the  said  party  of  the  second  part,  his  executors,  administrators 
or  assigns,  the  said  sum  of  money  mentioned  hi  the  condition  of  the  said  bond 


FOEMS  OP  MOKyGAGES,  ETC.  503 

or  obligation  and  the  interest  thereon,  at  the  tune  and  in  the  manner  mentioned 
in  the  said  condition  according  to  the  true  intent  and  meaning  thereof,  that  then 
these  presents,  and  the  estate  hereby  granted,  shall  cease,  determine,  and  be  void. 
And  the  said  (name  of  the  mortgagor)  for  himself  and  his  heirs,  executors,  and 
administrators,  does  covenant  and  agree,  to  pay  unto  the  said  party  of  the  second 
part,  or  his  executors,  administrators,  or  assigns,  the  said  sum  of  money  and  inter- 
est as  mentioned  above  and  expressed  hi  the  condition  of  the  said  bond.  And  if 
default  shall  be  made  in  the  payment  of  the  said  sum  of  money  above  mentioned,  or 
the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  that  then  and  from 
thenceforth  it  shall  be  lawful  for  the  said  party  of  the  second  part,  or  his  executors, 
administrators,  and  assigns,  to  enter  into  and  upon  all  and  singular  the  premises 
hereby  granted  or  intended  so  to  be,  and  to  sell  and  dispose  of  the  same,  and  all 
benefit  and  equity  of  redemption  o~f  the  said  party  of  the  first  part,  or  his  heirs, 
executors,  administrators,  or  assigns,  therein,  at  public  auction,  according  to  law. 
And  as  the  attorney  of  the  said  party  of  the  first  part,  for  that  purpose  by  these 
presents  duly  authorized,  constituted,  and  appointed,  to  make  and  deliver  to  the 
purchaser  or  purchasers  thereof,  a  good  and  sufficient  deed  or  deeds  of  conveyance 
in  the  law  for  the  same,  in  fee  simple,  and  out  of  the  money  arising  from  such  sale, 
to  retain  the  principal  and  interest  which  shall  then  be  due  on  the  said  bond  or 
obligation,  together  with  the  costs  and  charges  of  advertisement  and  sale  of  the 
said  premises,  rendering  the  overplus  of  the  purchase-money  (if  any  there  shall  be), 
unto  the  said  party  of  the  first  part,  his  heirs,  executors,  administrators,  or  assigns ; 
which  sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar,  both  in  law  and  equity, 
against  the  said  party  of  the  first  part,  and  his  heirs  and  assigns,  and  all  other 
persons  claiming  or  to  claim  the  premises  or  any  part  thereof,  by,  from,  or  under 
him  or  them,  or  either  of  them. 

And  it  is  Expressly  Agreed  by  and  between  the  parties  to  these  pres- 
ents, that  the  said  party  of  the  first  part  shall  and  will  keep  the  buildings  erected 
and  to  be  erected  upon  the  lands  above  conveyed,  insured  against  loss  and  damage 
by  fire,  by  insurers  approved  by  the  said  party  of  the  second  part,  and  in  an  amount 
approved  by  the  said  party  of  'he  second  part,  and  assign  the  policy  and  certificates 
thereof  to  the  said  party  of  the  second  part ;  and  hi  default  thereof,  it  shall  be  law- 
ful for  the  said  party  of  the  second  part  to  effect  such  insurance,  and  the  premium 
and  premiums  paiti  for  effecting  the  same  shall  be  a  lien  on  the  said  mortgaged 
premises,  added  to  the  amount  of  the  said  bond  or  obligation,  and  secured  by  these 
presents,  and  payable  on  demand  with  interest  at  the  rate  of  per  cent  per 

annum. 

In  Witness  Whereof  the  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  mortgagor.)     (Seal.) 
(Signature  of  mortgagee.)     (Seal) 

Sealed  and  Delivered  in  the  Presence  of 


504  MORTGAGES  OF  LAND. 

STATE  OP 


.88. 

COUNTY. 

On  the  day  of  hi  the  year  one  thousand  eight 

hundred  and  before  me  personally  came  to  be  the 

individuals  described  in,  and  who  executed  the  foregoing  instrument,  and 
acknowledged  that  they  executed  the  same  as  their  free  act  and  deed. 

(Signature.) 

(146.) 

Mortgage  to  Executors,  with  Power  of  Sale. 

This  Indenture,  Made  the  day  of  in 

the  year  one  thousand  eight  hundred  and  between 

(name,  residence,  and  occupation  of  the  mortgagor)  party  of  the   first  part,  and 
(name  and  residence  of  the  mortgagee)  executor  of  the  last  will  and  testament 
of  (name  and  residence  of  the  testator)  deceased,  of  the  second  part  ;  whereas, 

the  said  party  of  the  first  part  is  justly  indebted  to  the  said  party  of  the  second 
part  in  the  sum  of  lawful  money  of  the  United  States  of  America, 

secured  to  be  paid  by  a  certain  bond  or  obligation  bearing  even  date  with  these 
presents,  hi  the  penal  sum  of  lawful  money  as  aforesaid,  conditioned 

for  the  payment  of  the  said  first-mentioned  sum  (state  the  terms  of  the  payment ; 
and  if  the  bond  was  made  to  the  testator,  state  that)  as  by  the  said  bond  or  obligation 
and  the  condition  thereof,  reference  being  thereunto  had,  may  more  fully  appear. 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the  con- 
dition of  the  said  bond  or  obligation  with  interest  thereon,  according  to  the  true 
intent  and  meaning  thereof,  and  also  for  and  in  consideration  of  the  sum  of  one 
dollar,  to  him  in  hand  paid  by  the  said  party  of  the  second  part,  at  or  before  the 
ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  granted,  bargained,  sold,  aliened,  released,  conveyed,  and  confirmed,  and 
by  these  presents  does  grant,  bargain,  sell,  alien,  release,  convey,  and  confirm,  unto 
the  said  party  of  the  second  part,  and  his  successors  and  assigns  forever,  all  (here 
describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107,  deeds  of 
land) 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof:  and  also 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand 
whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in,  and 
to  the  same,  and  every  part  and  parcel  thereof  with  the  appurtenances.  To  have 
and  to  hold  the  above  granted,  bargained,  and  described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  his  successors  and  assigns,  to  their 


FORMS   OF  MORTGAGES,  ETC.  505 

only  proper  use,  benefit,  and  behoof  forever.  Provided  alwajss  and  these  presents 
are  upon  this  express  condition,  that  if  the  said  party  of  the  first  part,  or  his  heirs, 
executors,  or  administrators,  shall  well  and  truly  pay  unto  the  said  party  of  the 
second  part,  or  his  successors  or  assigns,  the  said  sum  of  money  mentioned  hi  the 
condition  of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the  tune,  and 
in  the  manner  mentioned  in  the  said  condition,  according  to  the  true  intent  and 
meaning  thereof,  that  then  these  presents,  and  the  estate  hereby  granted,  shall 
cease,  determine,  and  be  null  and  void.  And  the  said  party  of  the  first  part,  for 
himself  and  his  heirs,  executors,  and  administrators,  does  covenant  and  agree  to 
pay  unto  the  said  party  of  the  second  part,  his  successors  or  assigns,  the  said  sum 
of  money  and  interest,  as  mentioned  above,  and  expressed  in  the  condition  of  the 
said  bond.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money 
above  mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof, 
that  then  and  from  thenceforth  it  shall  be  lawful  for  the  said  party  of  the  second 
part,  his  successors  and  assigns,  to  enter  into  and  upon  all  and  singular  the  premises 
hereby  granted,  or  intended  so  to  be,  and  to  sell  and  dispose  of  the  same,  and  all 
benefit  and  equity  of  redemption  of  the  said  party  of  the  first  part,  or  his  heirs, 
executors,  administrators,  or  assigns  therein,  at  public  auction,  according  to  law. 
And  as  the  attorney  or  attorneys  of  the  said  party  of  the  first  part,  for  that  pur- 
pose by  these  presents  duly  authorized,  constituted,  and  appointed,  to  make  and 
deliver  to  the  purchaser  or  purchasers  thereof  a  good  and  sufficient  deed  or 
deeds  of  conveyance  in  the  law  for  the  same,  hi  fee  simple,  and  out  of  the  money 
arising  from  such  sale,  to  retain  the  principal  and  interest  which  shall  then  be  due 
on  the  said  bond  or  obligation,  together  with  the  costs  and  charges  of  advertisement 
and  sale  of  the  said  premises,  rendering  the  overplus  of  the  purchase-money  (if  any 
there  shall  be)  unto  the  said  party  of  the  first  part,  his  heirs,  executors,  admistra- 
tors,  or  assigns  ;  which  sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar,  both 
hi  law  and  equity,  against  the  said  party  of  the  first  part,  his  heirs  and  assigns,  and 
all  other  persons  claiming  or  to  claim  the  premises,  or  any  part  thereof,  by,  from, 
or  under  him,  them,  or  any  of  them. 

In  Witness  Whereof,  the  parties  to  these  presents  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written 

(Signature.)     (Seal.) 
(Signature.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 

STATE  OF  ,  ) 

COUNTY.  ) 

On  the  day  of  in  the  year  one  thousand  eight  hundred 

and  before  me  personally  came  to  be  the  individuals 

described  in,  and  who  executed  the  foregoing  instrument,  and  ackcowledged 

that  they  executed  the  same  as  their  free  act  and  deed. 

(Signature.) 


506  MORTGAGES  OF  LAND. 

(14:7.) 

Mortgage  of  a  Lease. 

This  Indenture,  Made  the  day  of  in 

the  year  one  thousand  eight  hundred  and  between  (name,  resid^  nee, 

and  occupation  of  mortgagor)  party  of  the  first  part,  and  (name,  residence,  and 

occupation  of  mortgagee)  party  of  the  second  part :  Whereas,  (name,  residence, 

and  occupation  of  the  lessor  of  the  lease  to  be  mortgaged)  did,  by  a  certain  indenture 
of  lease,  bearing  date  the  day  of  in  the  year 

one  thousand  eight  hundred  and  demise,  lease,  and  to  farm  let, 

unto  the  said  party  of  the  first  part,  and  to  his  executors,  administrators  and 
assigns,  all  and  singular  the  premises  hereinafter  mentioned  and  described,  together 
with  their  appurtenances  :  To  have  and  to  hold  the  same  unto  the  said  party  of  the 
first  part,  and  to  his  executors,  administrators  and  assigns,  for  and  during  and  until 
the  full  end  and  term  of  years,  from  the  day 

of  and  fully  to  be  complete  and  ended,  yielding  and  paying 

therefor  unto  the  said  (name  of  the  lessor)  and  to  his  heirs,  executors,  adminis- 
trators or  assigns,  the  yearly  rent  or  sum  of  (state  the  rent,  and  the  times,  or 
terms  of  the  payments) 

And.  Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the  said 
party  of  the  second  part,  in  the  sum  of  dollars,  lawful  money 

of  the  United  States  of  America,  secured  to  be  paid  by  his  certain  bond  or  obliga- 
tion bearing  even  date  with  these  presents,  in  the  penal  sum  of  dollars, 
lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said  first  mentioned 
sum  of  (here  give  the  amount  of  the  debt  to  be  paid)  as  by  the  said  bond  or  obli- 
gation and  the  condition  thereof,  reference  being  thereunto  had,  may  more  fully 
appear. 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the 
condition  of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the  true 
intent  and  meaning  thereof,  and  also  for  and  in  consideration  of  the  sum  of  one 
dollar,  to  him  in  hand  paid,  by  the  said  party  of  the  second  part,  at  or  before  the 
ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  granted,  bargained,  sold,  assigned,  transferred  and  set  over,  and  by 
these  presents  does  grant,  bargain,  sell,  assign,  transfer  and  set  over  unto  the  said 
party  of  the  second  part,  the  estate  or  premises  leased  and  transferred  by  said 
indenture  of  lease,  that  is  to  say  (here  describe  the  premises  in  the  same  manner  in 
which  they  are  described  in  the  lease),  together  with  all  and  singular  the  edifices, 
buildings,  rights,  members,  privileges  and  appurtenances  thereunto  belonging,  or 
in  any  wise  appertaining;  and  also  all  the  estate,  right,  title,  interest,  term  of  years 
yet  to  come  and  unexpired,  property,  possession,  claim  and  demand  whatsoever,  as 
well  in  law  as  hi  equity,  of  the  said  party  of  the  first  part,  of,  in,  and  to  the  said 
demised  premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances ;  and 


FOEMS  OP  MORTGAGES,   ETC.  507 

also  the  said  indenture  of  lease,  and  every  clause,  article  and  condition  therein 
expressed  and  contained. 

To  Have  and  to  Hold  the  said  indenture  of  lease,  and  other  hereby  granted 
premises,  unto  the  said  party  of  the  second  part,  his  executors,  administrators  and 
assigns,  to  his  and  their  only  proper  use,  benefit  and  behoof,  for  and  during  all  the 
rest,  residue,  and  remainder  of  the  said  term  of  years  yet  to  come  and  unexpired ; 
subject,  nevertheless,  to  the  rents,  covenants,  conditions  and  provisions  in  the  said 
indenture  of  lease  mentioned.  Provided  always,  and  these  presents  are  upon  this 
express  condition,  that  if  the  said  party  of  the  first  part  shall  well  and  truly  pay 
unto  the  said  party  of  the  second  part  the  said  sum  of  money  mentioned  hi  the 
condition  of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the  time  and 
in  the  manner  mentioned  in  the  said  condition,  according  to  the  true  intent  and 
meaning  thereof,  that  then  and  from  thenceforth  these  presents,  and  the  estate 
hereby  granted,*  shall  cease,  determine,  and  be  utterly  null  and  void,  any  thing  here- 
inbefore contained  to  the  contrary  in  any  wise  notwithstanding.  And  the  said 
party  of  the  first  part  does  hereby  covenant,  grant,  promise  and  agree  to  and  with 
the  said  party  of  the  second  part,  that  he  shall  well  and  truly  pay  unto  the  said 
party  of  the  second  part  the  said  sum  of  money  mentioned  hi  the  condition  of  the 
said  bond  or  obligation,  and  the  interest  thereon,'  according  to  the  condition  of  the 
said  bond  or  obligation.  And  that  the  said  premises  hereby  conveyed  now  are  freej 
and  clear  of  all  incumbrances  whatsoever,  and  that  the  said  party  of  the  first  part 
has  good  right  and  lawful  authority  to  convey  the  same  in  manner  and  form  hereby 
conveyed.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money 
above  mentioned,  or  in  the  interest  which  shall  accrue  thereon,  or  of  any  part  of 
either,  that  then  and  from  thenceforth  it  shall  be  lawful  for  the  said  party  of  the 
second  part,  and  his  assigns,  to  sell,  transfer,  and  set  over,  all  the  rest,  residue  and 
remainder  of  the  said  term  of  years  then  yet  to  come,  and  all  other  the  right,  title 
and  interest  of  the  said  party  of  the  first  part,  of,  in  and  to  the  same,  at  public 
auction,  according  to  the  act  hi  such  case  made  and  provided :  and  as  the  attorney 
of  the  said  party  of  the  first  part,  for  that  purpose  by  these  presents  duly  authorized, 
constituted  and  appointed,  to  make,  seal,  execute  and  deliver  to  the  purchaser  or 
purchasers  thereof,  a  good  and  sufficient  assignment,  transfer,  or  other  conveyance 
in  the  law,  for  the  same  premises,  with  the  appurtenances ;  and  out  of  the  money 
arising  from  such  sale,  to  retain  the  principal  and  interest  which  shall  then  be  due 
on  the  said  bond  or  obligation,  together  with  the  costs  and  charges  of  advertisement 
and  sale  of  the  same  premises,  rendering  the  overplus  of  the  purchase-money  (if 
any  there  shall  be),  unto  the  said  party  of  the  first  part,  or  his  assigns ;  which  sale, 
so  to  be  made,  shall  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said 
party  of  the  first  part,  and  against  all  persons  claiming  or  to  claim  the  premises,  or 
any  part  thereof,  by,  from,  or  under  him  or  them,  or  any  of  them. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents  has 
lereunto  set  his  hand  and  seal  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  the  Presence  of 
34 


508  MOETGAGES  OF  LAND 

STATE  OF  ") 

[-83. 

COUNTY  OP  ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came 

who  is  known  to  me  to  be  the  individual  described  in,  and  who  executed  the  fore- 
going instrument,  and  acknowledged  that  he  executed  the  same 
as  his  free  act  and  deed. 

(Signature.) 

(148.) 
Mortgagee's  Deed,  under  a  Power  of  Sale. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

(name  and  occupation  of  the  mortgagee)  of  the  County  of  and 

State  of  party  of  the  first  part,  and  (name  and  occupation 

of  the  grantee)  of  the  County  of  and  State  of 

of  the  second  part. 

TVltnesseth,  That  whereas  (name  and  occupation  of  the  owner  and 

mortgagor  who  gave  to  the  mortgagee  the  power  now  exercised)  of  the  County  of 
and  State  of  did,  by  a  certain  deed,  dated  the 

day  A.D.  18        ,  which  deed  is  recarded  in  the  recorder's  office 

of  the  County  of  in  the  State  of  on  the 

day  of  A.D.  18        ,  in  book  of 

at  page  ,  grant,  sell  and  convey  to  the  said  party  of  the  first 

part  all  the  premises  hereinafter  described,  to  secure  the  payment 

of  a  certain  debt  (or  note,  or  bond")  in  said  deed  particularly  mentioned,  and  upon 
certain  terms  in  said  deed  particularly  declared ;  and  whereas  default  hath  been 
made  in  the  payment  of  said  debt  (note  or  bond),  the  said  premises  were,  by  said 
party  of  the  first  part,  duly  advertised  for  public  sale  at  the  door  of 

the  court  house  in  the  County  of  and  State 

of  on  the  day  of  A.D.  18 

in  the  manner  prescribed  by  said  deed,  and  were,  upon  the  day  and  year  and  at 
the  place  last  mentioned  aforesaid,  in  pursuance  of  said  notice,  sold  at  public  sale, 
and  at  said  sale  the  said  party  of  the  second  part  was  the  highest  and  best  bidder 
therefor,  and  bid  for  the  tract  first  hereinafter  named,  the  sum  of 
dollars 

Now  Therefore  These  presents  witness,  that  the  said  party  of  the  first  part, 
in  pursuance  of  the  power  and  authority  in  him  vested  in  and  by  the  said  deed, 
and  in  consideration  of  the  sum  of 

dollars,  to  the  said  party  of  the  first  part  paid  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  hath  released  and  quitclaimed,  and 


FOEMS  OF  MORTGAGES,    ETC.  509 

doth  hereby  convey,  remise,  release  and  quitclaim  to  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever,  all  the  right,  title  and  interest,  as  well  in  law  as 
in  equity,  which  the  said  party  of  the  first  part  hath  acquired  by  virtue  of  the  deed 
above  mentioned,  of,  in  and  to  all  that  certain  tract  ,  piece  or  parcel  of  land 
situated  in  the  County  of  .  and  State  of 

and  described  as  follows,  to  wit  (here  describe  the  premises  as  directed  in  Form  107, 
of  deeds  of  lands). 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurte- 
nances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversions, 
remainders,  rents,  issues  and  profits  thereof;  and  also  all  the  estate,  right,  title> 
interest,  claim  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party 
of  the  first  part,  of,  in  and  to  the  same  and  any  and  every  part  thereof,  with  the 
appurtenances,  which  the  said  party  of  the  first  part  acquired  by  virtue  of  said  deed  : 

To  Have  and  to  Hold  the  aforesaid  right,  title  and  interest  of  the  said 
party  of  the  first  part,  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  as  full  and  absolutely  as  the  said  party  of  the  first  part  can,  by  virtue  cf 
the  power  and  authority  in  him  by  said  deed  vested,  convey  the  same. 

In  Witness  Whereof,  The  party  of  the  first  part  hath  hereto  set  his  hand 
and  seal  the  day  and  year  first  above  written. 

(Signature  of  seller.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 


>ss. 

JNTY.       ) 


STATE  OF 

COUNTY. 

On  the  day  of  eighteen  hundred  and 

sixty-  ,  before  me  of  the  County  of 

in  the  State  of  appeared  who  is  personally 

known  to  me  to  be  the  real  person  whose  name  is  subscribed  to  the  foregoing 
instrument  of  writing,  as  having  executed  the  same,  and  then  acknowledged  the 
execution  thereof  as  his  free  act  and  deed,  for  the  uses  and  purposes  herein  men- 
tioned. 

(Signature.) 

(149.) 
Assignment  of  Mortgage,  Short  Form. 

Know  all  Men  by  these  Presents,  That  I,  (name,  residence  and 

occupation  of  the  assignor)  the  mortgagee  named  in  a  certain  mortgage  deed, 
given  by  (name,  residence,  and  occupation  of  the  mortgagor)  to  said  (name 
of  assignor)  to  secure  the  payment  of  dollars  100,  dated  the 

day  of  in  the  year  of  our  Lord  eighteen  hundred  and 

recorded  in  the  registry  of  deeds  for  the  County  of 

lib.  fol.  in  consideration  of  the  sum  of  dollars  foo  to 


510  MORTGAGES   OF  LAND. 

me  paid  by  (name,  residence,  and  occupation  of  buyer  and  assignee")  the 

receipt  -whereof  is  hereby  acknowledged,  do  hereby  sell,  assign,  transfer,  set  over 
and  convey  unto  said  (name  of  assignee)  and  his  heirs  and  assigns,  said 

mortgage  deed,  the  real  estate  thereby  conveyed,  and  the  promissory  note,  debt  and 
claim  thereby  secured,  and  the  covenants  therein  contained. 

To  Have  and.  to  Hold  the  same  to  him  the  said  (name  of  assignee) 

and  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  forever ;  subject  never- 
theless to  the  conditions  herein  contained,  and  to  redemption  according  to  law. 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of  in  the  year  of  our 

Lord  eighteen  hundred  and 

(Signature.')     (Seal.) 

Executed  and  Delivered  in  Presence  of 

63.  A.D.  18 

Then  personally  appeared  the  above-named  and  acknowledged 

the  above  instrument  to  be  his  free  act  and  deed.    Before  me, 

(Signature.) 

(150.) 
Assignment  of  Mortgage,  witli  Power  of  Attorney. 

Know  all  Men  by  these  Presents,  That  I,  (name,  residence,  and 

occupation  of  assignor)  party  of  the  first  part,  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States,  to  me  in  hand  paid  by  (name,  resi- 

dence, and  occupation  of  assignee)  of  the  second  part,  at  or  before  the  ensealing  and 
delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  have 
granted,  bargained,  sold,  assigned,  transferred,  and  set  over,  and  by  these  presents 
do  grant,  bargain,  sell,  assign,  transfer,  and  set  over  unto  tke  said  party  of  the 
second  part,  his  executors,  administrators,  and  assigns,  a  certain  indenture  of  mort- 
gage, bearing  date  the  day  of  one  thousand  eight  hundred 
and  sixty-  made  by  (here  state  tJie  name  of  the  mortgagor,  and  briefly 
describe  the  mortgage  deed,  and  stale  the  volume  and  page  where  it  is  registered)  to 
which  reference  may  be  made,  together  with  all  the  right,  title,  interest,  and  estate 
of  said  party  of  the  first  part,  in  and  to  the  premises  described  and  conveyed  in  and 
by  said  indenture  of  mortgage. 

Together  with  the  bond  (or  note)  therein  described  and  the  money  due  and 
to  grow  due  thereon,  with  the  interest  accruing  or  accrued,  to  have  and  to  hold 
the  same,  unto  the  said  party  of  the  second  part,  his  executors,  administrators,  and 
assigns,  for  his  and  their  use,  subject  only  to  the  proviso  in  the  said  indenture  of 
mortgage  mentioned :  and  I  do  hereby  make,  constitute,  and  appoint  the  said  party 
of  the  second  part,  my  true  and  lawful  attorney,  irrevocably  hi  my  name  or  other- 
wise, but  at  his  own  proper  costs  and  charges,  to  have,  use,  and  take  all  lawful  ways 


FORMS   OF  MORTGAGES,   ETC.  511 

and  means  for  the  recovery  of  the  said  money  and  interest ;  and  in  case  of  jayment, 
to  discharge  the  same  as  fully  as  I  might  or  could  do  if  these  presents  were  not 
made. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 
^ay  °f  one  thousand  eight  hundred  and  sixty- 

(Signature.)     (Seal) 
Signed,  Sealed  and  Delivered  in  the  Presence  of 

STATE  OF  ,  ) 

>-S8. 

COUNTY.  ) 

On  this  day  of  eighteen  hundred  and  sixty- 

personally  appeared  before  me  known  to  me  to  be  the  person  who 

signed  and  sealed  the  foregoing  assignment  of  mortgage,  and  acknowledged  the 
execution  of  the  same  for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  seal  at  in  said  county  aforesaid. 

(Signature.)     (Seal.) 

(151.) 
Assignment  of  Mortgage  by  a  Corporation. 

Know  all  Men  by  these  Presents,  That  the  (legal  name  of  the 

corporation  assigning)  existing  as  a  corporate  body,  in  and  under  the  laws  of  the 
State  of  of  the  first  part,  for  and  in  consideration  of  the  sum  of 

lawful  money  of  the  United  States,  to  the  said  corporation  paid  by  (name, 
residence,  and  occupation  of  assignee)  of  the  second  part,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  have 
granted,  bargained,  sold,  assigned,  transferred,  and  set  over,  and  by  these  presents 
do  grant,  bargain,  sell,  assign,  transfer,  and  set  over  unto  the  said  party  of  the 
second  part,  a  certain  indenture  of  mortgage,  bearing  date  the  day  of 

one  thousand  eight  hundred  and  made  by  (here 

state  the  name  of  the  mortgagor,  and  briefly  describe  the  mortgage  deed)  the  same 
being  duly  registered  in  the  office  of  the  register  of  deeds  for  the  County  of 

and  State  of  to  which  said  indenture  of  mortgage,  reference 

may  be  had. 

Together  with  the  bond  or  obligation  therein  described,  and  the  moneys  due, 
and  to  grow  due  thereon,  with  the  interest :  to  have  and  10  hold  the  same  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  for  his  and  their  own  use, 
subject  only  to  the  proviso  in  the  said  indenture  of  mortgage  mentioned.  And  the 
eaid  parties  of  the  first  part  do  hereby  make,  constitute,  and  appoint  the  said  party 
of  the  second  part  their  true  and  lawful  attorney,  irrevocable,  in  the  name  of  the 
said  parties  of  the  first  part,  or  otherwise,  but  at  the  proper  costs  and  charges  of 
the  said  party  of  the  second  part,  to  have,  use,  and  take  all  lawful  ways  and  mean 


512  MORTGAGES  OF  LAND. 

for  the  recovery  of  the  said  money  and  interest,  and  in  case  of  payment  to  discharge 
the  same  as  fully  ae  the  said  parties  of  the  first  part  might  or  could  do  if  these 
presents  were  not  made. 

In  Witness  Whereofj  the  said  parties  of  the  first  part  have  caused  their 
common  seal  to  be  affixed  to  these  presents,  and  the  same  to  be  signed  by  their 
attorney  and  president  (or  other  officer)  the  day  of  in  the 

year  one  thousand  eight  hundred  and 

(Signature.)     (Seal  of  the  Corporation.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

STATE  OP  ,  "> 

>SS. 

COUNTY.  ) 

On  the  day  of  in  the  year  one  thousand  eight  hundred  and 

before  me  came  with  whom  I  am  personally  acquainted, 

and  known  to  me  to  be  the  attorney  and  of  the  within  named  corpora- 

tion, who  being  by  me  duly  examined  says,  that  the  seal  which  is  affixed  to  the 
within  assignment  is  the  corporate  seal  of  the  said  corporation,  and  was  so  affixed 
by  their  authority,  and  acknowledged  that  he  executed  the  same  as  their  act  and 
deed. 

(Signature.) 

(152.) 
Discharge  of  Mortgage,  Short  Form. 

The  Debt  secured  by  the  mortgage,  dated  and  recorded  with 

deeds,  lib.  fol.  has  been  paid  to  me  by  (name  of 

mortgagor)  and  in  consideration  thereof  I  do  discharge  the  mortgage  and  release 
the  mortgaged  premises  to  said  (name  of  mortgagor)  and  his  heirs. 

Witness  my  hand  and  seal  A.D.  18 

(Signature.)     (Seal.) 
Executed  and  Delivered  in  Presence  of 

88.  A.D.  186     Then  said  acknowledged  the  foregoing 

instrument  to  be        free  act  and  deed. 

Before  me,  (Signature.) 

(153.) 
Release  and  Quitclaim  of  Mortgage,  as  Used  in  the  Western  States, 

Know  all  Men  by  these  Presents,  That  I  (name  of  mortgagee) 

of  the  County  of  and  State  of  for  and  in  con- 

sideration of  one  dollar,  to  me  in  hand  paid,  and  for  other  good  and  valuable 


FORMS  OF  MORTGAGES,  ETC.  513 

considerations,  the  receipt  whereof  is  hereby  confessed,  do  hereby  grant,  bargain, 
remise,  convey,  release,  and  quitclaim  unto  (name  of  assignee  or  releasee)  of 

the  County  of  and  State  of  all  the  right,  title, 

interest,  claim,  or  demand  whatsoever  I  may  have  acquired  in,  through,  or  by  a 
certain  indenture  or  mortgage  deed,  bearing  date  the  day 

of  A.D.  186    ,  and  recorded  in  the  recorder's  office  of 

County,  in  book  of  page 

to  the  premises  therein  described,  and  which  said  deed  was  made  to  secure  a 
certain  promissory  note  (or  bond)  bearing  even  date  with  said  deed,  for  the  sum 
of  dollars  and  cents. 

"Witness  my  hand  and  seal  this  day  of  A.D.  186 

(Signature.)     (Seal.) 

STATE  OF  ,  ) 

[-88. 

COUNTY.  ) 

I,  in  and  for  said  county  in  the  State  aforesaid, 

do  hereby  certify  that  who  is  personally  known  to  me  as  the 

same  person  whose  name  is  subscribed  to  the  foregoing  deed,  appeared  before 
me,  this  day,  in  person,  and  acknowledged  that  he  signed,  sealed,  and  delivered 
the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for  the  uses  and  pur- 
poses therein  set  forth. 

Given  under  my  hand  and  seal  this  day  of  A.D.  186 

(Signature.)     (Seal.) 


(154.) 
Discharge  of  Mortgage,  as  used  in  the  Middle  States. 

STATE  OP 


.•  ss. 

COUNTY  OF 

I,  (name,  residence,  and  occupation  of  mortgagee)  do  hereby  certify  that  a 

certain  indenture  (or  deed)  of  mortgage  bearing  date  the  day 

of  one  thousand  eight  hundred  and  made  and 

executed  by          (here  state  the  name  of  the  mortgagor,  and  describe  the  deed  briefly) 
and  recorded  in  the  office  of  County  of 

in  lib.  of  mortgages,  page  on  the  dav  of 

in  the  year  one  thousand  eight  hundred  and  o'clock,  in  the 

is>  paid.     And  I  do  hereby  consent  that  the  same  be  discharged  of  record. 
Dated  the  day  of  18 

(Signature.)     (Seal.) 

In  Presence  of 


514  MORTGAGES  OF  LAND. 

STATE  OF 


>ss. 


COUNTY  OF 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came 

•who  is  known  to  me  to  be  the  individual  described  in,  and  who  executed  the  fore- 
going instrument,  and  acknowledged  that  he  executed  the  same  as  his  free  act  and 
deed. 

(Signature.) 
(155.) 

Discharge  and  Satisfaction  of  Mortgage  by  a  Corporation, 

We,  (the  legal  name  of  the  corporation)  a  corporate  body  existing  within 

and  under  the  laws  of  the  State  of 

Do  hereby  Certify,  That  a  certain  mortgage,  bearing  date  the 
day  of  in  the  year  one  thousand  eight  hundred  and 

made  and  executed  by  (here  state  the  name  of  the  mortgagor,  and  describe 

the  mortgage  briefly)  and  recorded  in  the  office  of  the  register  in  and  for  the 
County  of  in  lib.  of  mortgages,  page  on  the 

day  of  is  paid. 

In  Witness  Whereof,  The  said  corporation  has  caused  its  corporate  seal  to 
be  hereunto  affixed,  this  day  of  in  the  year 

one  thousand  eight  hundred  and 

(Signature  of  attorney.)     (Seal  of  corporation.) 
Witnessed  by 

STATE  OF 

COUNTY  OF 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came 

to  me  known,  who,  being  by  me  duly  sworn,  did  depose  and  say,  that  he  resided  in 
the  city  (or  town)  of  that  he  is  the  attorney  and  president  (or 

ether  officer)  of  the  said  corporation ;  that  he  knew  the  corporate  seal  of  the  said 
corporation,  and  that  the  seal  affixed  to  the  foregoing  instrument  was  such  corpo- 
rate seal ;  that  it  was  affixed  by  him  by  order  of  the  said  corporation,  and  that  he 
ligaed  his  name  thereto  by  the  like  order. 

(Signature.) 

(156.) 
Release  of  a  Part  of  the  Mortgaged  Premises. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

(name,  residence  and  occupation  of  the  mortgagee  and  releasor)  party  cf  the  first 


POEMS  OF  MOETGAGES,  ETC.  515 

part  and  (name,  residence  and  occupation  of  the  mortgagor  to  whor.  i',e  release 

is  given)  party  of  the  second  part : 

Whereas,  The  said  party  of  the  second  part,  by  indenture  of  mortgage,  bear- 
ing date  the  day  of  one  thousand  eight 
hundred  and  for  the  consideration  therein  mentioned,  and  to 
secure  the  payment  of  the  money  therein  specified,  did  convey  certain  lands  and 
tenements,  of  which  the  lands  hereinafter  described  are  part,  unto  the  said  party 
of  the  first  part, 

And  Whereas,  The  said  party  of  the  first  part,  at  the  request  of  the  said 
party  of  the  second  part,  has  agreed  to  give  up  and  surrender  the  lands  hereinafter 
described  unto  the  said  party  of  the  second  part,  and  to  hold  and  retain  the  residue 
of  the  mortgaged  lands  as  security  for  the  money  remaining  due  on  the  said  mort- 
gage: Now  this  indenture  witnesseth,  that  the  said  party  of  the  first  part,  hi 
pursuance  of  the  said  agreement,  and  in  consideration  of  to  him 

duly  paid  at  the  time  of  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  released,  quitclaimed  and  set  over, 
and  by  these  presents  does  grant,  release,  quitclaim,  and  set  over,  unto  the  said 
party  of  the  second  part,  all  that  part  of  the  said  mortgaged  land  (here  describe 
carefully  and  accurately  all  that  part  of  the  mortgaged  land  which  it  is  intended  to 
release,  distinguishing  it  from  that  which  is  retained) 

Together  with  the  hereditaments  and  appurtenances  thereto  belonging ;  and 
all  the  right,  title  and  interest  of  the  said  party  of  the  first  part,  of,  in  and  to  the 
same,  to  the  intent  that  the  lands  hereby  conveyed  may  be  discharged  from  the 
said  mortgage,  and  that  the  rest  of  the  lands  hi  the  said  mortgage  specified  may 
remain  to  the  said  party  of  the  first  part  as  heretofore.  To  have  and  to  hold  the 
lands  and  premises  hereby  released  and  conveyed,  to  the  said  party  of  the  second 
part,  and  his  heirs  and  assigns  to  his  and  their  only  proper  use,  benefit  and  behoof 
forever,  free,  clear  and  discharged  of  and  from  all  lien  and  claim,  under  and  by 
virtue  of  the  indenture  of  mortgage  aforesaid. 

In  Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  on  the  day  of  in  the  year 

(Signature.)      (Seal.) 
Executed  and  delivered  in  presence  of 

STATE  OP  > 

COUNTY  OF  ) 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came 

who  is  known  to  me  to  be  the  individual  described  in,  and  who  executed  the  fore- 
going instrument,  and  acknowledged  that  he  executed  the  same  as  his  free  act  and 
deed.  (Signature.) 


516  MORTGAGES  OF  LAND. 

(157.) 
Deed  extending  a  Mortgage. 

This  Indenture,  Made  this  day  of  A.D.  18 

by  and  between  (name,  residence,  and  occupation  of  the  mortgagee)  the  owner 

and  holder  of  a  certain  promissory  note  (or  bond)  for  the  principal  sum  of 
dollars,  given  by  (name  of  mortgagor)  and  secured  by  a  mortgage  of  certain  real 
estate  hi  hi  the  County  of  and  State  of 

dated  day  A.D.  18        , 

and  recorded  hi  Registry  of  Deeds,  for  the  County  of 

lib.  fol.  party  of  the  first  part,  and  the  said 

(name  of  mortgagor)  party  of  the  second  part, 

Witnesseth,  That  the  said  parties,  for  themselves  and  their  representatives, 
hereby  mutually  agree  that  the  time  for  the  payment  of  the  principal  of  said  note 
and  mortgage  debt  shall  be  and  the  same  is  hereby  extended  for  the  term  of 
years  from  the  day  of  A.D. 

18        ,  and  that  the  same  is  to  bear  interest  from  said  date  at  the  rate  of 
per  cent  per  annum,  payable  on  the  day  of 

and  the  day  of  hi  every  year,  until  said 

principal  sum  shall  be  fully  paid. 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees  that  he  will 
not  require  the  holders  of  said  note  and  mortgage  to  receive  payment  of  said  mort- 
gage debt  during  said  extended  term ;  that  he  will  punctually  pay  the  interest  now 
due,  and  to  grow  due  thereon,  at  the  tunes  and  at  the  rate  aforesaid ;  that  he  wiU 
keep  the  mortgaged  premises  hi  good  repair,  and  insured  against  fire,  and  the  taxes 
thereon  duly  paid,  according  to  the  provisions  of  said  mortgage,  and  that  at  the 
expiration  of  said  extended  term  he  will  pay  the  said  mortgage  debt,  with 
all  interest  then  due  thereon. 

It  is  expressly  understood  and  agreed  that  nothing  herein  contained  shall  be  con- 
strued to  impair  the  security  of  said  party  of  the  first  part,  or  his  executors,  admin- 
istrators, or  assigns,  under  said  mortgage,  or  to  affect  or  impair  the  lien  on  the  real 
estate  therein  described  which  he  has  by  virtue  of  said  mortgage,  nor  affect  or  im- 
pair any  rights  or  powers  which  he  may  have  under  the  said  note  and  mortgage 
for  the  recovery  of  the  mortgage  debt,  with  interest,  in  case  of  non-fulfilment  of  this 
agreement,  or  of  any  of  the  provisions  hereof,  by  said  party  of  the  second  part. 

In  "Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

(Signature  of  mortgagee.')     (Seal.) 
(Signature  of  mortgagor.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

Commonwealth  of                                 88.  18             Personally 

appeared  the  above-named  and  acknowledged  the  above 
instrument  to  be  their  free  act  and  deed. 

Before  me,  (Signature.) 


LEASES.  517 


CHAPTER 

ILEUSES. 

A  LEASE  is  a  contract  whereby  one  party  (the  tenant)  takes  the 
possession  of  the  land  and  all  that  is  on  it,  and  the  other  party  (the 
landlord)  gives  possession  of  the  land,  and  reserves  (that  is,  agrees 
to  take)  a  rent,  which  the  tenant  pays  him  by  way  of  compensation. 

All  things  usually  comprehended  under  the  words  "  house," 
"  farm,"  "  land,"  "  store,"  &c.,  pass  to  the  tenant,  where  such  words 
are  used,  unless  there  be  an  express  exception.  And  inaccuracies 
as  to  qualities,  names,  measurements,  or  amounts,  will  be  corrected, 
if  there  be  enough  in  the  lease  to  make  the  purposes  and  intentions 
of  the  parties  certain.  And  letting  to  hire  any  thing  to  be  used  car- 
ries with  it  all  those  appurtenances  and  accompaniments  necessary 
for  the  proper  use  and  enjoyment  of  the  thing  which  belong  to  the 
letter. 

A  landlord  is  bound  to  put  his  lessee  into  possession  with  good 
title.  If  he  covenants  "  to  renew"  generally,  this  means  a  renewal 
of  the  lease  on  the  same  terms,  but  without  inserting  in  the  new 
lease  another  covenant  of  renewal. 

A  landlord  is  under  no  legal  obligation  to  repair  the  house,  unless 
he  expressly  agrees  to  do  so.  If  the  house  is  never  so  much  dilapi- 
dated and  disfigured  as  to  paper,  paint,  &c.,  and  locks  and  blinds 
and  doors  and  windows  are  out  of  order,  and  the  like,  the  tenant 
can  claim  nothing  of  the  landlord.  Even  if  it  becomes  wholly  un- 
inhabitable by  no  fault  of  the  house  or  of  the  landlord,  as  if  it 
burns  up,  or  is  blown  down,  or  if  the  overflow  of  a  stream  ruins  a 
field  or  a  farm,  still  the  landlord  is  not  bound  to  do  any  thing,  unless 
by  special  agreement. 

But  if  the  house  is  uninhabitable  by  its  own  fault,  as  if  it  has  a 
noisome  and  unwholesome  stench,  or,  according  to  one  case,  if  it  be 
overrun  with  rats,  or  so  decayed  as  to  be  open  to  the  weather,  it 
would  seem  to  be  the  law  of  this  country,  that  the  tenant  may  leave 
the  house  ;  always  provided,  however,  that  the  objection  or  defect  be 


518  LEASES. 

not  one  which  the  tenant  knew  or  anticipated,  or  would  have  known 
or  expected  if  he  had  made  reasonable  inquiry  and  investigation 
before  he  took  his  lease.  And  perhaps  no  tenant  can  leave  his 
house,  or  refuse  or  abate  his  rent,  for  any  objection  or  difficulty 
arising  after  he  hires  the  house.  But,  strange  to  say,  the  important 
question  what  the  tenant's  rights  are  in  such  a  case  is  still  uncertain. 

If  the  house  be  wholly  destroyed,  the  tenant  must  still  pay  rent, 
under  an  ordinary  lease  ;  because  the  law  looks  upon  the  land  as 
the  principal  thing,  and  the  house  as  secondary.  And  not  only  so, 
but  if  the  tenant  covenants  "  to  return  and  redeliver  the  house  at 
the  end  of  the  term,  in  good  order  and  condition,  reasonable  wear 
and  tear  only  excepted,"  he  would  be  bound  under  this  agreement 
to  rebuild  the  house  if  it  were  burned  down.  But  recently  all  well- 
drawn  leases  have  clauses  providing  that  the  rent  shall  cease  or  be 
abated  while  the  premises  are  uninhabitable  from  fire  or  any  other 
unavoidable  calamity.  A  similar  exception  is  added  to  the  clause 
about  returning  the  house,  at  the  end  of  the  lease.  If  this  excep- 
tion be  in,  a  tenant  is  not  bound  to  rebuild,  even  if  the  house  be 
burned  through  the  carelessness  of  himself  or  his  servants. 

A  tenant  of  a  room,  or  of  a  suite  of  chambers,  is  entitled  to  the 
use  of  all  the  appurtenances  and  accommodations  which  fairly  go  with 
it,  as  of  the  front  door  and  entry,  water-closets,  and  of  all  windows, 
&c.,  proper  to  the  enjoyment  of  what  he  hires.  But  an  express 
agreement  about  all  these  things,  and  cellar-room,  pump,  and  the 
like,  is  always  safest. 

The  tenant  is  not  bound  to  make  general  repairs  without  an 
express  agreement.  But  he  must  make  such  as  are  necessary  to 
preserve  the  house  from  injury,  as  from  rain,  if  shingles  or  slates 
are  blown  off  or  glass  broken.  And  he  would  be  bound  even  for 
ornamental  repairs,  as  paper  and  paint,  under  a  covenant  to  return 
"  in  good  order." 

The  tenant  of  a  farm  is  bound,  without  express  covenants,  to 
manage  and  cultivate  the  same  in  such  a  manner  as  good  husbandry 
and  the  usual  course  of  management  of  such  farms  in  his  vicinity 
would  require. 

The  times  for  payment  of  rent  are  usually  specified  in  the  lease , 
if  not,  they  would  be  governed  by  the  usage  of  the  country,  if  there 
were  any  of  sufficient  distinction  and  force. 


LEASES.  519 

A  tenant  under  a  lease  which  says  nothing  ajout  underletting 
has  a  perfect  right  to  underlet,  remaining  himself  bound  for  his 
rent  to  his-  landlord. 

A  tenant  is  not  responsible  for  taxes,  unless  it  is  expressly  agreed 
in  the  lease  that  he  shall  be. 

If  there  be  a  clause  prohibiting  him  from  underletting  or  assign- 
ing, and  he  agrees  not  to,  nevertheless  he  may  do  so  without  for- 
feiting the  land  ;  but  he  will  be,  as  before,  liable  for  rent ;  and 
besides  this,  he  will  be  responsible  in  an  action  for  any  damages 
which  the  landlord  can  show  that  he  has  sustained  by  such  under- 
letting. 

It  is  usual  to  go  further  in  the  lease  than  this,  and  provide  that 
such  underletting  shall  make  a  forfeiture  of  the  lease,  and  authorize 
the  landlord  to  enter  upon  the  premises  and  turn  the  tenant  out 
Where  there  is  this  covenant,  if  the  tenant  now  underlets,  the  land- 
lord cannot  avail  himself  of  the  clause  of  forfeiture  and  afterwards 
hold  the  tenant  for  his  rent.  He  may  either  hold  him  for  his  rent, 
and  also  for  damages,  or  he  may  terminate  the  lease ;  but  cannot  do 
both.  That  is,  if  he  continues  to  hold  the  tenant  responsible  for 
rent,  he  cannot  prevent  the  tenant's  letting  somebody  else  occupy 
the  house  and  pay  to  him  (the  tenant)  the  rent  which  he  pays  over. 

A  tenant  of  a  farm,  if  his  lease  is  terminated  by  any  event  which 
was  uncertain,  and  which  he  could  neither  foresee  nor  control,  is 
entitled  to  the  annual  crop  which  he  sowed  while  his  interest  in  and 
right  to  the  farm  continued. 

If  a  lease  be  for  a  certain  time,  the  tenant  loses  all  right  or  in- 
terest in  the  land  or  premises  when  that  time  comes,  and  he  must 
leave,  or  the  landlord  may  turn  him  out  at  once.  But  he  is  a 
tenant  at  will,  if  he  holds  over  after  a  lease  with  consent,  or  occu- 
pies the  land  or  house  or  store  without  a  lease  but  with  consent  and 
an  oral  bargain ;  and  a  tenant  at  will  cannot  leave,  nor  can  he 
be  turned  out,  without  a  notice  to  quit.  The  law  on  this  subject  is 
not  uniform.  In  general,  however,  it  is  this.  If  rent  is  payable 
quarterly,  or  not  more  frequently,  then  there  must  be  a  quarter's 
notice.  If  rent  is  payable  oftener,  then  the  notice  must  be  as  long 
as  the  period  of  payment.  Thus,  if  rent  is  payable  monthly,  there 
must  be  a  month's  notice ;  if  weekly,  a  week's  notice.  But  the 


520  LEASES. 

notice  must -terminate  on  a  day  when  the  rent  is  payable.  It  may 
be  given  at  any  time,  but  operates  only  after  the  required  interval 
or  period  between  two  payments.  Thus,  if  a  tenant  whose  lease 
terminates  on  the  31st  of  December  holds  over  by  consent,  and  pays 
rent  quarterly,  and  the  landlord  wishes  that  he  should  leave  the 
house  on  the  last  day  of  September,  he  may  give  notice  on  the  pro- 
ceding  30th  day  of  June,  or  any  day  preceding  that.  But  if  he  gives 
notice  on  any  day  before  the  30th  of  June,  the  tenant  will  still  have 
a  right  to  stay  until  the  30th  of  September.  Properly,  the  riotice 
should  specify  the  day,  and  the  right  day,  when  the  tenant  must 
leave ;  and  should  be  in  writing. 

Where  the  rent  is  in  arrear,  the  notice  to  quit  may  be  more  brief ; 
the  statutes  of  the  different  States  vary  on  this  point,  but  a  frequent 
period  is  fourteen  days.  And  if  notice  to  quit  is  given  because  the 
rent  is  unpaid,  it  may  be  given  at  any  time,  and  will  operate  at 
the  end  of  the  period  which  the  law  designates ;  but  it  should 
specify  the  day  on  which  the  tenant  must  quit. 

A  tenant  may  give  notice  of  his  intention  to  quit,  and  generally 
it  will  be  subject  to  the  same  rules  already  stated  in  reference  to 
the  notice  given  by  a  landlord.  A  tenant  should  give  his  notice 
to  the  party  to  whom  he  is  bound  to  pay  rent,  or  to  an  authorized 
agent  of  that  party. 

Fixtures. 

It  is  quite  important  that  both  tenant  and  landlord  should  have 
some  knowledge  of  the  law  of  fixtures ;  for  this  tells  them  what 
things  the  tenant  may  take  away  and  what  he  cannot.  For  there 
are  many  things  which  a  tenant  may  add,  and  afterwards  remove, 
and  many  which  he  cannot  remove.  The  method  of  affixing  them 
may  be  a  useful  criterion,  as  it  indicates  the  purpose  of  removal  or 
otherwise.  If  with  screws,  or  in  such  a  way  as  to  show  that  re- 
moval was  intended,  things  may  be  taken  away,  when,  if  the  same 
things  were  fastened  more  permanently,  they  could  not  be.  In 
modern  times  the  rule  in  favor  of  the  tenant  seems  to  extend  as  far 
as  this  :  whatever  he  has  added,  and  can  remove,  leaving  the  prem- 
ises entirely  restored  and  in  as  good  order  as  if  he  had  not  removed 


FIXTURES.  521 

it,  that  he  may  take  away.  Among  the  things  held  to  be  remova- 
ble, in  different  adjudged  eases,  are  these :  ornamental  chimney- 
pieces  ;  coffee-mills  ;  cornices  screwed  on  ;  furnaces  ;  fire-frames  ; 
stoves  ;  iron  backs  to  chimneys  ;  looking-glasses  ;  pumps  ;  gates ; 
rails  and  posts  ;  barns  or  stables  on  blocks. 

Among  those  held  not  removable  are  these :  barns  fixed  in  the 
ground ;  benches  fastened  to  the  house ;  trees,  plants,  and  hedges, 
not  belonging  to  a  gardener  by  trade ;  conservatory  strongly  affixed ; 
glass  windows ;  locks  and  keys. 

But  almost  every  one  of  these  might  be  removable,  or  not,  accord- 
ing to  the  intent  of  the  parties,  and  the  rule  above  stated,  of  remov- 
ableness  with  or  without  injury. 

If  a  man  sells  a  house,  the  law  of  fixtures  is  construed  far  more 
severely  against  him  than  against  a  tenant  who  leaves  a  house  ;  that 
is,  the  seller  must  permit  the  buyer  to  hold  a  great  many  things 
which  an  outgoing  tenant  might  remove.  Of  course,  a  seller  may 
take  what  he  will  from  his  house  before  he  sells  it,  or  make  what 
bargain  the  parties  choose  to  make  about  the  fixtures.  But  if  he 
makes  no  such  bargain,  and  sells  the  house,  he  cannot  then  take 
from  the  house  what  a  tenant  who  put  them  there  might  take. 

In  favor  of  trade  and  manufactures,  the  law  permits  almost  any 
thing  which  was  put  in  by  a  tenant  for  such  purposes  to  be  taken 
away,  if  the  premises  can  be  restored  substantially  to  their  original 
condition. 

The  remarks  in  respect  to  the  variety  of  forms  which  will  be 
found  at  the  close  of  the  chapter  on  deeds  of  land,  are  equally  ap- 
plicable to  forms  of  leases,  and  should  be  read  in  connection  with 
the  following  forms. 

(158.) 
A  Short  Form  of  a  Lease. 

This  Indenture,  Made  the  day  of  in  fto 

year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 

Witnessetli,  That  I,  (name  and  residence  of  the  lessor)  do  hereby  lease, 

demise,  and  let  unto  (name  and  residence  of  lessee)  a  certain  parcel  of  land,  in  the 
city  (or  town)  of  County  of  and  State  of 

with  all  the  buildings  thereon  standing,  and  the  appurtenances  to  the  same  belong- 


522  LEASES. 

ing,  bounded  and  described  as  follows  (or,  a  certain  house  in  said  city,  givs.g  ike 
street  and  number,  with  the  land  under  and  adjoining  the  same) 

(The  premises  need  not  be  described  quite  so  minutely  or  fully  as  is  proper  in 
a  deed  or  mortgage  of  land,  but  must  be  so  described  as  to  identify  them  perfectly,  and 
make  it  certain  just  what  premises  are  leased.) 

To  Hold  for  the  term  of  from  the  day  of 

yielding  and  paying  therefor  the  rent  of 

And  said  lessee  does  promise  to  pay  the  said  rent  in  four  quarterly  payments 
on  the  day  of  ,  (or  state  otherwise  just  when  the 

payments  of  rent  are  to  be  made)  and  to  quit  and  deliver  up  the  premises  to  the 
lessor  or  his  attorney,  peaceably  and  quietly,  at  the  end  of  the  term,  in  as  good 
order  and  condition,  reasonable  use  and  wearing  thereof,  fire  and  other  unavoida- 
ble casualties  excepted,  as  the  same  now  are  or  may  be  put  into  by  the  said  lessor, 
and  to  pay  the  rent  as  above  stated,  and  all  taxes  and  duties  levied  or  to  be  levied 
thereon,  during  the  term,  and  also  the  rent  and  taxes,  as  above  stated,  for  such 
further  time  as  the  lessee  may  hold  the  same,  and  not  make  or  suffer  any  waste 
thereof;  nor  lease,  nor  underlet,  nor  permit  any  other  person  or  persons  to  occupy 
or  improve  the  same,  or  make  or  suffer  to  be  made  any  alteration  therein  but  with 
the  approbation  of  the  lessor  thereto,  in  writing,  having  been  first  obtained ;  and 
that  the  lessor  may  enter  to  view,  and  make  improvements,  and  to  expel  the  lessee, 
if  he  shall  fail  to  pay  the  rent  and  taxes  as  aforesaid,  or  make  or  suffer  any  strip 
or  waste  thereof. 

In  Witness  Whereof,  The  said  parties  have  hereunto  interchangeably  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature.)     (Seal.) 
(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 


(159.) 
A  fuller  Form,  wltU  a  Provision  for  Abatement  of  Rent. 

This    Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  by  and  between 

(name  and  residence  of  lessor)  and  (name  and  residence  of  lessee) 

Witnesseth,  That  the  said  (name  of  lessor)  does  hereby  lease,  demise, 

and  let  unto  the  said  (name  of  lessee)  (describe  the  premises  as  directed  in 

Form  158,  leases) 

To  Hold  for  the  term  of  commencing  the 

day  of  A.D.  one  thousand  eight  hundred  and 

the  said  lessee  or  those  claiming  under  him,  yielding  and  paying  rent  therefor,  the 
sum  of  for  each  and  every  year,  and  after  the  same  rate 

for  any  part  of  a  year. 


FORMS  OF  LEASES.  523 

And  the  said  lessee  for  himself,  his  heirs,  executors  and  administrators,  doea 
hereby  covenant  to  and  with  the  said  lessor,  and  his  heirs  and  assigns,  that  he  or 
they  will  pay  the  said  rent  of  in  equal  sums  of 

the  first  of  which  payments  shall  be  made  on  the  day  of 

A.D.  one  thousand  eight  hundred  and  and  that  he  or  they  will 

pay  rent  after  the  same  rate  for  such  further  time  as  he  the  said  lessee,  or  those 
claiming  under  him,  may  hold  the  premises  ;  that  he  or  they  will  from  time  to  time, 
upon  request  by  the  lessor,  or  his  heirs  or  assigns,  pay  to  them  such  sum  or  sums 
of  money  as  shall  be  equal  to  the  amount  of  the  taxes  and  duties,  and  water-taxes, 
that  shall  be  levied  or  assessed  on  the  demised  premises  for  each  year  and  part  of  a 
year  during  the  term  aforesaid,  and  during  such  further  time  as  the  said  lessee  and 
those  claiming  under  him  may  hold  the  premises ;  that  he  or  they  will  not  suffer 
nor  commit  any  strip  or  waste  in  the  premises  ;  that  he  or  they  will  not  assign  this 
lease,  nor  underlet  the  whole  or  any  part  of  the  premises,  to  any  person  or  persons ; 
and  that  no  alterations  or  additions  shall  be  made  during  the  term  aforesaid,  in  or 
to  the  same,  without  the  consent  of  the  said  lessor,  or  of  those  having  his  estate  in 
the  premises,  being  first  obtained  in  writing,  allowing  thereof;  and  also  that  it 
shall  be  lawful  for  the  said  lessor,  and  those  having  his  estate  in  the  premises,  at 
seasonable  times  to  enter  into  and  upon  the  same  to  examine  the  condition  thereof; 
and  further,  that  he  the  said  lessee,  and  his  representatives,  shall  and  will,  at  the 
expiration  of  said  term,  peaceably  yield  up  unto  the  said  lessor,  or  those  having 
his  estate  therein,  all  and  singular  the  premises,  and  all  future  erections  and' 
additions  to  or  upon  the  same,  in  as  good  order  and  condition,  in  all  respects, 
(reasonable  wearing  and  use  thereof,  and  damage  by  fire,  and  other  unavoidable 
casualties  excepted)  as  the  same  now  are,  or  may  be  put  into  by  the  said  lessor 
or  those  having  his  estate  in  the  premises. 

Provided  always,  and  these  presents  are  upon  this  condition,  that  if  the 
said  rent  shall  be  in  arrear,  or  the  said  lessee  or  his  representatives  or  assigns  do  or 
shall  neglect  or  fail  to  perform  and  observe  any  or  either  of  the  above  covenants 
hereinbefore  contained,  which  on  his  or  their  part  are  to  be  performed,  then  and  in 
either  of  said  cases,  the  said  lessor  or  those  having  his  estate  in  the  said  premises, 
lawfully  may,  immediately  or  at  any  time  thereafter,  and  while  such  neglect  or  de- 
fault continues,  and  without  further  notice  or  demand,  enter  into  and  upon  the  said 
premises,  or  any  part  thereof,  in  the  name  of  the  whole,  and  repossess  the  same  as 
of  his  former  estate,  and  expel  the  said  lessee  and  those  claiming  under  him,.and 
remove  his  or  their  effects  (forcibly  if  necessary)  without  being  taken  or  deemed 
guilty  of  any  manner  of  trespass,  and  without  prejudice  to  any  remedies  which 
might  otherwise  be  used  for  arrears  of  rent,  or  preceding  breach  of  covenant. 

And  Provided  also,  that  in  case  the  premises,  or  any  part  thereof,  shall, 
during  said  term,  be  destroyed  or  damaged  by  fire  or  other  unavoidable  casualty, 
so  that  the  same  shall  be  thereby  rendered  unfit  for  use  and  habitation,  then,  and 
in  such  case,  the  rent  hereinbefore  reserved,  or  a  just  and  proportionate  part 
thereof,  according  to  the  nature  and  extent  of  the  injuries  sustained,  shall  be  sus- 
35 


524  LEASES. 

pended  or  abated  until  the  said  premises  shall  have  been  put  in  proper  condition 
for  use  and  habitation  by  the  said  lessor,  or  these  presents  shall  thereby  be  deter- 
mined and  ended  at  the  election  of  the  said  lessor  or  his  legal  representatives. 

In  Testimony  Whereofj  the  said  parties  have  set  their  hands  and  seals, 
on  the  day  and  year  first  above  written,  to  this  and  to  another  instrument  of  like 
tanor  and  date. 

(Signature.)     (Seal.) 
(Signature.')     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of 


(160.) 
A  Short  Form  of  Lease,  in  Use  in  the  Western  States. 

This  Indenture,  Made  this  day  of  186 

between  (name  and  residence  of  the  lessor)  party  of  the  first  part,  and 

(name  and  residence  of  the  lessee)  party  of  the  second  part,  witnesseth,  that  the 
said  party  of  the  first  part,  in  consideration  of  the  covenants  of  the  said  party  of 
the  second  part,  hereinafter  set  forth,  do  by  these  presents  lease  to  the  said  party 
of  the  second  part  the  following-described  property,  to  wit  (describe  the  property 
as  directed  in  Form  158.) 

To  Have  and  to  Hold  the  same  to  the  said  party  of  the  second  part,  from 
the  day  of  186  ,  to  the 

day  of  186     ,     And  the  said  party  of  the  second  part,  in 

consideration  of  the  leasing  the  premises  as  above  set  forth,  covenants  and  agrees 
with  the  party  of  the  first  part  to  pay  the  said  party  of  the  first  part,  as  rent  for 
the  same,  the  sum  of  dollars,  payable  as  follows,  to  wit  (here  state 

the  times  and  terms  of  payment,  much  as  in  Form  158.) 

The  said  party  of  the  second  part  further  covenants  with  the  said  party  of  the 
first  part,  that  at  the  expiration  of  the  time  mentioned  in  this  lease,  peaceable  pos- 
session of  the  said  premises  shall  be  given  to  said  party  of  the  first  part,  in  as 
good  condition  as  they  now  are,  the  usual  wear,  inevitable  accidents,  and  loss  by 
fire  excepted ;  and  that  upon  the  non-payment  of  the  whole  or  any  portion  of  the 
said  rent  at  the  time  when  the  same  is  above  promised  to  be  paid,  the  said  party 
of  the  first  part  may,  at  his  election,  either  distrain  for  said  rent  due,  or  declare 
this  lease  at  an  end,  and  recover  possession  as  if  the  same  was  held  by  forcible 
detainer :  the  said  party  of  the  second  part  hereby  waiving  any  notice  of  such  elec- 
tion, or  any  demand  for  the  possession  of  said  premises. 

The  covenants  herein  shall  extend  to  and  be  binding  upon  the  heirs,  executors, 
and  administrators  of  the  parties  to  this  lease. 

Witness  the  hands  and  seals  of  the  parties  aforesaid. 

(Signature  of  lessor.)     (Seal) 
(Signature  of  lessee.)     (  Seal.) 


FORMS   OF  LEASES.  525 

(161.) 

A  Lease  of  City  Property,  in  Use  in  Chicago. 

This  Indenture,  Made  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty  between 

(name  of  the  lessor)  of  the  city  of  in  the  County  of 

and  State  of  party  of  the  first  part,  and 

(name  and  residence  of  the  lessee)  of  the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part,  for  and  in  consideration  of 
the  covenants  and  agreements  hereinafter  mentioned,  to  be  kept  and  performed  by 
the  said  party  of  the  second  part,  or  his  executors,  administrators  and  assigns,  has 
demised  and  leased  to  the  said  party  of  the  second  part  all  those  premises  situate, 
lying  and  being  in  the  city  of  Chicago,  in  the  County  of  Cook,  and  State  of  Illinois, 
and  known  and  described  as  follows,  to  wit  (here  describe  the  premises  as  directed  in 
Form  158) 

To  Have  and  to  Hold  The  said  above-described  premises,  with  the  ap- 
purtenances, unto  the  said  party  of  the  second  part,  and  his  executors,  administra- 
tors, and  assigns,  from  the  day  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixty  for  and  during, 
and  until  the  day  of  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  the  said  party  of  the 
second  part  paying  rent  therefor,  as  hereinafter  stated. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  leasing  the  prem- 
ises aforesaid,  by  the  said  party  of  the  first  part,  to  the  said  party  of  the  second 
part,  does  covenant  and  agree  with  the  said  party  of  the  first  part,  and  his  heirs, 
executors,  administrators,  and  assigns,  to  pay  the  said  party  of  the  first  part,  at 
the  house  (or  office  or  store)  of  the  said  party  of  the  first  part,  numbered  in 

Street,  Chicago,  or  at  the  house  or  office  of  his  assigns,  as  rent 
for  the  said  demised  premises,  the  sum  of  (state  the  whole  annual  rent)  payable  as 
follows  (here  state  the  times  and  terms  of  the  payments  of  rent) 

And  it  is  further  agreed  by  the  said  party  of  the  second  part,  in  consideration 
of  the  leasing  of  the  premises,  that  the  said  party  of  the  second  part  shall  and  will 
pay,  or  cause  to  be  paid,  promptly,  as  soon  as  the  same  becomes  due,  all  assess- 
ments for  water-rents  that  may  be  levied  upon  said  demised  premises,  during  the 
continuance  of  this  lease,  by  the  Board  of  Water  Commissioners  of  the  city  of  Chi- 
cago, and  save  the  said  premises  and  the  said  party  of  the  first  part  harmless 
therefrom,  and  that  he  will  keep  said  premises  in  a  clean  and  healthy  con- 
dition, in  accordance  with  the  ordinances  of  the  city  and  the  direction  of  the  Sew- 
erage Commissioners. 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees,  in  case  of 
delay  in  payment  of  any  water-rent  levied  upon  said  premises  during  said  term,  to 
pay  said  party  of  the  first  part,  as  liquidated  damages  for  such  breach  of  covenant, 
double  the  sum  of  such  rent  so  assessed  upon  said  premises  as  aforesaid. 

And  the  said  party  of  the  second  part  further  covenants  with  the  said  party  of 


526  LEASES 

the  first  part,  that  at  the  expiration  of  the  time  in  .Ms  lease  mentioned,        he 
will  yield  up  the  said  demised  premises  to  the  said  party  of  the  first  part,  in  as 
good  condition  as  when  the  same  were  entered  upon  by  the  said  party  of  the  secoud 
part,  loss  by  fire  or  inevitable  accident,  and  ordinary  wear  excepted. 

It  is  further  agreed  by  the  said  party  of  the  second  part,  that  neither    he 
nor  his  legal  representatives  will  underlet  said  premises,  or  any  part  thereof,  or 
assign  this  lease,  without  the  written  assent  of  said  party  of  the  first  part,  first  had 
and  obtained  thereto. 

It  is  Expressly  Understood  and  Agrreed,  By  and  between  the  parties 
aforesaid,  that  if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  behind  or 
unpaid  on  the  day  and  at  the  place  of  payment  whereon  the  same  ought  to  be  paid, 
as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants  herein  contained, 
to  be  kept  by  the  said  party  of  the  second  part,  or  his  executors,  administrators, 
and  assigns,  it  shall  and  may  be  lawful  for  the  said  party  of  the  first  part,  or  his 
heirs,  executors,  administrators,  agent,  attorney,  or  assigns,  at  his  or  their  elec- 
tion, to  declare  said  term  ended,  and  the  said  demised  premises,  or  any  part  there- 
of, either  with  or  without  process  of  law,  to  re-enter,  and  the  said  party  of  the  second 
part,  or  any  other  person  or  persons  occupying,  in  or  upon  the  same,  to  expel,  re- 
move, and  put  out,  using  such  force  as  may  be  necessary  in  so  doing,  and  the  said 
premises  again  to  repossess  and  enjoy  as  in  his  or  their  first  and  former  estate ; 
and  it  shall  be  the  duty  of  the  said  party  of  the  second  part,  his  executors,  admin- 
istrators, or  assigns,  to  be  and  appear  at  the  said  place  above  specified  for  the  pay- 
ment of  said  rent,  and  then  and  there  tender  and  pay  the  same  as  the  same  shall 
fall  due  from  time  to  time,  as  above,  to  the  said  party  of  the  first  part,  or  his  agent 
or  assigns ;  or  in  his  or  their  absence,  if  the  party  of  the  second  part  or  his  legal 
representatives  shall  offer  to  pay  the  same  then  and  there,  such  offer  shall  prevent 
such  forfeiture. 

And  it  is  expressly  understood  that  it  shall  not  be  necessary  in  any  event  for 
the  party  of  the  first  part,  or  his  assigns,  to  go  on  or  near  the  said  demised  prom- 
ises to  demand  said  rent,  or  elsewhere  than  Jit  the  place  aforesaid.  And  in  the 
event  of  any  rent  being  due  and  unpaid,  whether  before  or  after  such  forfeiture 
declared,  to  distrain  for  any  rent  that  may  be  due  thereon,  upon  any  property  be- 
longing to  the  said  party  of  the  second  part,  whether  the  same  be  exempt  from 
execution  or  distress  by  law  or  not,  and  the  said  party  of  the  second  part,  in  that 
case,  hereby  waives  all  legal  rights  which  he  may  have  to  hold  or  retain  any 
such  property,  under  any  exemption  laws  now  in  force  in  this  State,  or  in  any 
other  way.  Meaning  and  intending  hereby  to  give  to  the  said  party  of  the  first 
part,  and  his  heirs,  executors,  administrators,  and  assigns,  a  valid  and  fiist  lien 
upon  any  and  all  the  goods,  chattels,  or  other  property  belonging  to  the  said  party 
of  the  second  part,  as  security  for  the  payment  of  said  rent,  in  manner  aforesaid, 
any  thing  hereinbefore  contained  to  the  contrary  notwithstanding.  And  if  at  any 
time  said  term  shall  be  ended  at  such  election  of  said  party  of  the  first  part,  or  hw 
heirs,  executors,  administrators,  or  assigns,  as  aforesaid,  or  in  any  other  way,  the 
said  party  of  the  second  part,  for  himself  and  his  executors,  administrators,  and 


FOBMS   OF  LEASES.  527 

assigns,  does  hereby  covenant,  promise  and  agree  to  surrender  and  deliver  up  said 
•ixrre-d«scribed  premises  and  property,  peaceably  to  the  said  party  of  the  first 
part,  or  his  heirs,  executors,  administrators,  and  assigns,  immediately  upon  the 
determination  of  said  term  as  aforesaid ;  and,  if  he  shall  remain  in  the  pos- 
session of  the  same  days  after  notice  of  such  default,  or  after 
the  termination  of  this  lease,  in  any  of  the  ways  above  named,  he  shall  be 
deemed  guilty  of  a  forcible  detainer  of  said  demised  premises  under  the  statute, 
and  shall  be  subject  to  all  the  conditions  and  provisions  above  named,  and  to  evic- 
tion and  removal,  forcibly  or  otherwise,  with  or  without  process  of  law,  as  above 
stated ;  and  in  order  to  enforce  a  forfeiture  of  this  lease  for  non-payment  of  rent 
when  due,  no  demand  for  rent  when  due  shall  be  required,  any  demand  bein<* 
hereby  expressly  waived. 

And  it  is  further  covenanted  and  agreed  by  and  between  the  parties,  that  the 
party  of  the  second  part  shall  pay  and  discharge  all  costs  and  attorney's  fees  and 
expenses  that  shall  arise  from  enforcing  the  covenants  of  this  indenture  by  the 
party  of  the  first  part. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

(Signature  of  lessor)     (Seal.) 

(Signature  of  lessee.)     (Seal.) 
In  Presence  of 

(162.) 
A  Lease,  with  Provisions  for  Taxes  and  Assessments. 

This  Indenture,  Made  the  day  of  in 

the  year  one  thousand  eight  hundred  and  between  (name 

and  residence  of  lessor)  of  the  first  part,  and  (name  and  residence  of  lessee) 

of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  rents,  covenants,  and  agreements  hereinafter  mentioned,  reserved, 
and  contained,  on  the  part  and  behalf  of  the  said  party  of  the  second 
part,  his  executors,  administrators,  and  assigns,  to  be  paid,  kept,  and  performed, 
has  granted,  demised,  and  to  farm  letten,  and  by  these  presents  does  grant,  demise, 
and  to  farm  let,  unto  the  said  party  of  the  second  part,  and  his  executors,  admin- 
istrators, and  assigns,  all  (describe  the  premises  as  in  Form  158) 

To  Have  and  to  Hold  the  said  above  mentioned  and  described  premises, 
with  the  appurtenances,  unto  the  said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  from  the  day  of  one 
thousand  eight  hundred  and  for  and  during,  and  until  the  full 
end  and  term  of  thence  next  ensuing :  and  fully  to  be  complete 
and  ended,  yielding  and  paying  therefor  unto  the  said  party  of  the  first  j,art,  his 
heirs  or  assigns,  yearly,  and  every  year  during  the  said  term  hereby  granted,  the 
yearly  rent  or  sum  of  lawful  money  of  the  United  States  of 
America,  in  equal  quarter-yearly  payments,  to  wit :  on  the  first  day  of  (name 


528  LEASES. 

t?te  months)  in  each  and  every  of  the  said  years  :  provided  always  nevertheless,  that 
if  the  yearly  rent  above  reserved,  or  any  part  thereof,  shall  be  behind  or  unpaid  on 
any  day  of  payment  whereon  the  same  ought  to  be  paid  as  aforesaid ;  or  if  default 
shall  be  made  in  any  of  the  covenants  herein  contained,  on  the  part  and  behalf  of 
the  aaid  party  of  the  second  part,  his  executors,  administrators,  and  assigns,  to  be 
paid,  kept,  and  performed,  then  and  from  thenceforth  it  shall  and  may  be  lawful 
for  the  said  party  of  the  first  part,  his  heirs  or  assigns,  into  and  upon  the  said 
demised  premises,  and  ever}'  part  thereof,  wholly  to  re-enter  and  remove  all  per- 
sons therefrom,  and  the  same  to  have  again,  repossess,  and  enjoy,  as  in  his  or  their 
first  and  former  estate,  any  thing  hereinbefore  contained  to  the  contrary  thereof 
in  any  wise  notwithstanding.  And  the  said  party  of  the  second  part, 

for  himself  and  his  heirs,  executors,  and  administrators,  does  covenant  and  agree, 
to  and  with  the  said  party  of  the  first  part,  his  heirs  and  assigns,  by  these  presents, 
that  the  said  party  of  the  second  part,  his  executors,  administrators,  or 

assigns,  shall  and  will  yearly,  and  every  year  during  the  said  term  hereby  granted, 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  party  of  the  first  part,  his 
heirs  or  assigns,  the  said  yearly  rent  above  reserved,  on  the  days  and  in  manner 
limited  and  prescribed  as  aforesaid,  for  the  payment  thereof,  without  any  deduc- 
tion, fraud,  or  delay,  according  to  the  true  intent  and  meaning  of  these  presents. 
And  that  the  said  party  of  the  second  part,  his  executors,  administrators,  or  as- 
signs, shall  and  will,  at  their  own  proper  costs  and  charges,  bear,  pay,  and  dis- 
charge all  such  taxes,  duties,  and  assessments  whatsoever,  as  shall  or  may,  during 
the  said  term  hereby  granted,  be  charged,  assessed,  or  imposed  upon  the  said 
demised  premises. 

And  that  on  the  last  day  of  the  said  term,  or  other  sooner  determination  of  the 
estate  hereby  granted,  the  said  party  of  the  second  part,  his  executors,  administra- 
tors, or  assigns,  shall  and  will  peaceably  and  quietly  leave,  surrender  and  yield  up 
unto  the  said  party  of  the  first  part,  his  heirs  or  assigns,  all  and  singular  the  said 
demised  premises. 

And  the  said  party  of  the  first  part,  for  himself  and  his  heirs,  executors,  and 
administrators,  does  covenant  and  agree  to  and  with  the  said  party  of  the  second 
part,  his  executors,  administrators,  and  assigns,  by  these  presents,  that  the 
said  party  of  the  second  part,  executors,  administrators,  or  assigns, 

paying  the  said  yearly  rent  above  reserved,  and  performing  the  covenants  and 
agreements  aforesaid  on  his  and  their  part,  the  said  party  of  the  second  part,  his 
executors,  administrators,  and  assigns,  shall  and  may  at  all  times  during  the  said 
term  hereby  granted,  peaceably  and  quietly  have,  hold  and  enjoy  the  said  demised 
premises,  without  any  manner  of  let,  suit,  trouble  or  hinderance  of  or  from  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  or  any  other  person  or  persons  whom- 
soever. 

In  Witness  Whereof,  the  said  have  hereunto  set  their 

hands  and  seals,  interchangeably,  to  two  copies  of  this  indenture. 

(Signature  of  lessor.)      (Seal) 
(Signature  of  lessee.)      (Seal.) 

In  Presence  of 


FOKMS  OF  LEASES.  529 


(163.) 

4  Lease,  With  Covenants  about  Water-Rate,  and  Injury  by  Fire, 
in  Use  in  New  York. 

This  Agreement,  Made  between  (name  and 

residence  of  lessor)  party  of  the  first  part,  and  (name  and  residence  of  lessee) 

party  of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part  has  agreed 
to  let,  and  hereby  does  let,  and  the  said  party  of  the  second  part  has  agreed  to 
take,  and  hereby  does  take,  the  following-described  premises  (here  describe  the 
premises,  as  in  Form  158)  for  the  term  of  to  commence 

and  to  end  to  be  occupied  (describe  the 

intended  occupation)  and  not  otherwise.  And  the  said  party  of  the  second  part 
hereby  covenants  and  agrees  to  pay  unto  the  said  party  of  the  first  part  the  annual 
rent  or  sum  of  dollars,  payable  (state  the  times  and  terms  of 

the  payments) 

And  shall  also  pay  the  Croton  water-rate,  and  will  keep  the  plumbing  work, 
pipes,  glass,  and  the  premises  generally  in  repair,  and  will  surrender  them  at  the 
expiration  of  the  said  term,  in  as  good  state  and  condition  as  reasonable  use  and 
wear  thereof  will  permit.  . 

And  the  said  party  of  the  second  part  further  covenants  that  he  will  not  assign, 
let,  or  underlet  the  whole  or  any  part  of  the  said  premises,  nor  make  any  alteration 
therein  without  the  written  consent  of  the  said  party  of  the  first  part,  under  the 
penalty  of  forfeiture  and  damages ;  and  that  he  will  not  occupy  the  said  premises, 
nor  permit  the  same  to  be  occupied  for  any  business  deemed  extra-hazardous  with- 
out the  like  consent,  under  the  like  penalty.  And  the  said  party  of  the  second 
part  further  covenants  that  he  will  permit  the  said  party  of  the  first  part,  or  his 
agent,  to  show  the  premises  to  persons  wishing  to  hire  or  purchase,  and  three 
months  next  preceding  the  expiration  of  the  term  will  permit  the  usual  notices  of 
"  to  let,"  or  "  for  sale,"  to  be  placed  upon  the  windows,  walls,  or  doors  of  said  prem- 
ises, and  remain  thereon  without  hinderance  or  molestation. 

And  also,  that  if  default  be  made  in  any  of  the  covenants  herein  contained  on  the 
part  of  the  party  of  the  second  part,  or  if  the  said  premises  or  any  part  thereof 
shall  become  vacant  during  the  said  term,  the  said  party  of  the  first  part  may  re- 
enter  the  same,  either  by  force  or  otherwise,  without  being  liable  to  any  prosecu- 
tion therefor ;  and  re-let  the  said  premises  or  any  part  thereof  in  one  or  more  par- 
cels, as  the  agent  of  the  said  party  of  the  second  part,  and  receive  the  rent  thereof, 
applying  the  same,  first  to  the  payment  of  such  expense  as  he  may  be  put  to  in 
re-entering,  and  then  to  the  payment  of  the  rent  due  by  these  presents ;  and  the 
balance  (if  any)  to  be  paid  over  to  the  said  party  of  the  second  part ;  and,  in  case 
of  deficiency,  said  party  of  the  second  part  will  pay  the  same. 

And  the  said  party  of  the  second  part  hereby  further  covenants  that  if  any 
default  be  made  in  the  payment  of  the  said  rent  or  any  part  thereof,  at  the  times 
above  specified,  or  if  default  be  made  in  the  performance  of  any  of  the  covenants 


530  LEASES. 

or  agreements  herein  contained,  the  said  hiring,  and  the  relation  of  landlord  and 
tenant,  at  the  option  of  the  said  party  of  the  first  part,  shall  wholly  cease  and  deter- 
mine ;  and  the  said  party  of  the  first  part  shall  and  may  re-enter  the  said  premises, 
and  remove  all  persons  therefrom ;  and  the  said  party  of  the  second  part  hereby 
expressly  waive,  the  service  of  any  notice  in  writing  of  intention  to  re-enter,  as 
provided  for  La  the  third  section  of  an  act  entitled  "  An  Act  to  abolish  Distress  for 
Kent,  and  for  other  Purposes,"  passed  May  13, 1846. 

And  it  is  further  agreed  between  the  parties  to  these  presents,  that,  hi  case  th-i 
building  hereby  leased  shall  be  partially  damaged  by  fire,  the  same  shall  be  repaired 
as  speedily  as  possible  by  the  party  of  the  first  part ;  that,  in  case  the  damage  shall 
be  so  extensive  as  to  render  the  building  untenantable,  the  rent  shall  cease  until  the 
same  be  repaired ;  provided  the  damage  be  not  caused  by  the  carelessness  or  neg- 
ligence of  the  party  of  the  second  part,  or  his  agents  or  servants. 

If  the  building  be  so  damaged  that  the  owner  shall  decide  to  rebuild,  the  term 
shall  cease,  the  premises  be  surrendered,  and  the  accrued  rent  be  paid  up  to  the 
tune  of  the  fire. 

In  consideration  of  the  letting  of  the  premises  above  mentioned  to  the  above 
named  (name  of  the  lessee)  and  of  the  sum  of  one  dollar  to  him  paid  by  the 

said  party  of  the  first  part,  the  said  party  of  the  second  part  does  hereby  covenant 
and  agree  to  and  with  the  party  of  the  first  part  above  named,  and  his  legal  repre- 
sentatives, that  if  default  shall  at  any  time  be  made  by  the  said  party  of  the  second 
part,  hi  the  payment  of  the  rent  and  performance  of  the  covenants  above  contained 
on  his  part  to  be  paid  and  performed,  that  he  will  well  and  truly  pay  the  said  rent 
or  any  arrears  thereof,  that  may  remain  due  unto  the  said  party  of  the  first  part 
and  also  all  damages  that  may  arise  in  consequence  of  the  non-performance  of  said 
covenants,  or  either  of  them,  without  requiring  notice  of  any  such  default  from  the 
said  party  of  the  first  part. 

"Witness  our  hands  and  seals  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Witness.) 

(Signature  of  lessor.)     (Seal.) 
(Signature  of  lessee.)     (Seal.) 


(164.) 
A  Lease  by  Grant,  in  Use  in  the  Western  States. 

This  Indenture,  Made  and  entered  into  on  the  day 

of  one  thousand  eight  hundred  and  sixty-  by  and 

between  (name  of  lessor)  of  (residence  of  lessor)  party  of  the  first 

part,  and  (name  of  lessee)  of  (residence  of  lessee)  party  of  the 

second  part,  witnesseth,  That  the  said  party  of  the  first  part,  in  consideration  of 
the  rents  reserved,  and  the  covenants  hereinafter  contained,  does  hereby  grant, 


POEMS   OF  LEASES.  581 

demise,  and  to  farm  let,  unto  the  said  party  of  the  second  part  (describe  the  prem- 
ises as  in  Form  158) 

To  Have  and  to  Hold  the  Same,  "With  all  the  rights,  immunities,  privi- 
leges and  appurtenances  thereto  belonging,  unto  the  said  party  of  the  second  part, 
and  his  executors,  administrators  and  assigns,  for  and  during  the  full  end  and  term 
of  commencing  on  the  day  of 

186       ,  and  ending  on  the  day  of  186      , 

under  and  subject  to  the  stipulations  hereinafter  contained,  the  said  party  of  the 
second  part  yielding  and  paying  to  the  said  part  of  the  first  part,  for  the  said 
premises,  the  annual  rent  of  payable  in  equal  quarterly  (or 

monthly)  payments ;  that  is  to  say  on  the 

during  said  term ;  which  rent  the  said  party  of  the  second  part,  for  himself  and  his 
executors,  administrators  and  assigns,  covenants  well  and  truly  to  pay,  at  the  times 
aforesaid. 

And  the  said  party  of  the  second  part  covenants  and  agrees  that  if  the  rent 
aforesaid  should  at  any  time  remain  due  and  unpaid,  the  same  shall  bear  interest 
at  the  rate  of  per  cent  per  annum,  from  the  time  it  so  becomes  due,  until 

paid.  And  the  said  party  of  the  second  part  further  covenants  and  agrees  that  it 
shall  be  lawful  for  the  said  party  of  the  first  part,  and  those  having  freehold  estate 
ia  the  premises,  at  reasonable  terms,  to  enter  into  and  upon  the  same,  to  examine 
the  condition  thereof;  and  also  that  the  said  party  of  the  second  part  and  his  legal 
representatives  shall  and  will,  at  the  expiration  of  this  lease,  whether  by  limitation 
or  forfeiture,  peaceably  yield  up  to  the  said  party  of  the  first  part,  or  his  legal 
representatives,  the  said  premises,  in  the  condition  received,  only  excepting  natural 
wear  and  decay,  and  the  effects  of  fire ;  and  that  the  said  party  of  the  second  part, 
for  and  during  all  the  time  that  he  or  any  one  else  hi  his  name,  shall  hold  over  the 
premises  after  the  expiration  of  this  lease,  in  either  of  said  ways,  shall  and  will  pay 
to  said  party  of  the  first  part  double  the  rent  hereinbefore  reserved.  Also  the  said 
party  of  the  second  part  further  covenants  and  agrees  that  any  failure  to  pay  the 
rent  hereinbefore  reserved,  when  due  and  within  •  days  after  a  demand  of  the 
same,  shall  produce  an  absolute  forfeiture  of  this  lease,  if  so  determined  by  said 
party  of  the  first  part,  or  his  legal  representatives.  Also  that  this  lease  shall  not 
be  assigned,  nor  the  said  premises,  or  any  part  thereof,  underlet,  without  the 
written  consent  of  the  said  party  of  the  first  part,  or  his  legal  representatives, 
under  penalty  of  forfeiture.  And  that  all  repairs  of  a  temporary  character,  deemed 
necessary  by  said  party  of  the  second  part,  shall  be  made  at  his  own  expense,  with 
the  consent  of  the  said  party  of  the  first  part,  or  his  legal  representatives,  and  not 
otherwise. 

Provided  Always,  And  these  presents  are  on  this  express  condition,  that  if 
the  said  party  of  the  second  part,  or  his  legal  representatives,  shall  fail  to  pay  the 
rent  hereinbefore  reserved,  for  the  space  of  days  after  the  same  shall  have 

become  due,  or  shall  fail  to  perform  any  of  the  covenants  hereinbefore  entered  into 
on  1  's  and  their  part,  then  the  said  party  of  the  first  part  shall  be  at  liberty  to 


532  LEASES. 

declare  this  lease  forfeited,  by  serving  a  written  notice  to  that  effect  on  the  said 
party  of  the  second  part,  or  his  legal  representatives,  and  to  re-enter  upon  and 
take  possession  of  the  demised  premises,  free  from  any  claim  of  the  lessee  or  any 
one  claiming  under  him.  And  all  estate  herein  granted  shall,  upon  service  of  such 
notice,  forthwith  cease,  and  said  lessor,  his  heirs,  legal  representatives  or  assigns, 
shall  be  forthwith  entitled  to  the  possession  of  the  demised  premises  without  any 
further  proceeding  at  law  or  otherwise,  to  recover  possession  thereof.  And  the 
said  party  of  the  first  part  covenants  and  agrees  with  the  said  party  of  the  second, 
part,  and  his  legal  representatives,  that,  the  covenants  herein  contained  being  faith- 
fully performed  by  the  said  party  of  the  second  part,  he  shall  peaceably  hold  and 
enjoy  the  said  demised  premises,  during  the  term  aforesaid,  without  hinderance  or 
interruption  by  the  said  lessor  or  any  other  person. 

In  "Witness  "Whereof,  The  said  parties  have  executed  this  indenture  in 
duplicate,  signing  their  names  and  affixing  their  seals  to  both  parts  thereof,  the  day 
and  year  in  this  behalf  above  written. 

(Signature  of  lessor.)     (Seal.) 
(Signature  of  lessee.)     (Seal.) 
In  Presence  of 

(165.) 
A  Lease  by  Certificate,  with  Surety. 

This  is  to  Certify,  That  I  have  let  and  rented  unto  (name  of  lessee) 

(describe  Hie  premises,  as  in  Form  158)  for  the  term  of  from 

the  day  of  18  at  the  annual  rent 

of  dollars,  payable  (state  the  times  of  payment).     The 

premises  above  mentioned,  or  any  part  thereof,  shall  not  be  let  or  underlet  without 
the  written  consent  of  the  landlord,  under  penalty  of  forfeiture  and  damages ;  nor 
shall  the  same  be  used  or  occupied  for  any  business  deemed  extra  hazardous  on 
account  of  fire,  without  the  like  consent  under  the  like  penalty. 

Given  under  my  hand  and  seal  the  day  of  18 

(Signature.)     (Seal.) 

(  Witnesses.) 

This  is  to  Certify,  That  I  have  hired  and  taken  from  (name  of  lessor) 

(describe  the  premises  in  the  same  way  as  in  the  preceding  part)  for  the  term  of 
from  the  day  of  18       at 

the  rent  of  dollars,  payable 

And  I  hereby  promise  to  make  punctual  payment  of  the  rent  in  m&*ujicr  aforesaid, 
and  to  quit  and  surrender  the  premises,  at  the  expiration  of  said  tGrid,  in  as  good 
state  and  condition  as  reasonable  use  and  wear  thereof  will  permit,  daiuages  by  the 
elements  excepted,  and  engage  not  to  let  or  underlet  the  whole  or  any  part  of  the 
said  premises,  without  the  written  consent  of  the  landlord,  uncl^r  the  penalty  of 
for?3iture  and  damages ;  and  also  not  to  use  or  occupy  the  said  premises  far  *n^ 


FORMS   OF  LEASES.  533 

business  deemed  extra  hazardous,  on  account  of  fire,  without  the  like  consent, 
under  the  like  penalty. 

Given  under  my  hand  and  seal  the  day  of  18 

(Signature.')     (Seal.) 
(Witnesses.) 

In  Consideration  of  the  letting  of  the  premises  above  described,  and  for  the 
sum  of  one  dollar,  I  do  hereby  become  surety  for  the  punctual  payment  of  the  rent, 
and  performance  of  the  covenants,  in  the  above-written  agreement  mentioned,  to  be 
paid  and  performed  by  (name  of  lessee)  and  if  any  default  shall  be  made 

therein,  I  do  hereby  promise  and  agree  to  pay  unto  (name  of  lessor)  such 

sum  or  sums  of  money  as  will  be  sufficient  to  make  up  such  deficiency,  and  fully 
satisfy  the  conditions  of  the  said  agreement,  without  requiring  any  notice  of  non- 
payment, or  proof  of  demand  being  made. 

Given  under  my  hand  and  seal  the  day  of  18 

(Signature.)     (Seal.) 
(  Witnesses.) 


(166.) 

A  Lease  of  City  Property,  in  Use  in  St.  Louis. 

TMs  Indenture,  Made  the  day  of  hi  the 

year  of  our  Lord  eighteen  hundred  and  sixty-  between  (name 

and  residence  of  the  lessor)  of  the  first  part,  arid  (name  and  residence  of  lessee) 

of  the  second  part,  witnesseth,  That  the  said  party  of  the  first  part,  in  consideration 
of  the  rents,  covenants  and  stipulations  hereinafter  mentioned,  and  hereby  agreed 
to  be  paid,  kept  and  perfonned  by  the  said  party  of  the  second  part,  his  executors, 
administrators  and  assigns,  hath  leased,  and  by  these  presents  doth  lease,  to  the 
said  party  of  the  second  part  the  following-described  premises  (here  describe  the 
house,  as  of  brick,  or  stone,  number  of  stories,  and  number  in  the  block)  in  block 
No.  in  the  city  of  St.  Louis,  to  commence  on  the 

day  of  186        for  and  during  the  term  of  at  the 

annual  rent  of  payable  in  four  equal  quarterly  payments, 

beginning  three  months  from  the  date  hereof.  Any  failure  to  pay  each  payment 
of  rent  when  due,  to  produce  a  forfeiture  of  this  lease,  if  so  determined  by  said 
lessor  or  his  successors.  The  lease  of  said  tenement  or  any  part  of  it  is  not  assign- 
able, nor  is  said  tenement  or  any  part  of  it  to  be  underlet,  without  the  written 
consent  of  said  lessor,  under  penalty  of  forfeiture.  And  it  is  hereby  covenanted, 
tit  at,  at  the  expiration  of  this  lease,  the  said  tenement  and  premises  are  to  be  sur- 
rendered to  said  lessor,  his  heirs,  assigns,  or  successors,  in  the  condition  received, 
only  excepting  its  natural  wear  and  decay,  or  the  effects  of  accidental  fire.  All 
repairs  deemed  necessary  by  said  lessee  to  be  made  at  his  expcinse.  All  fixtures 
shall  be  bo'ind  for  the  rent. 


534  LEASES. 

The  said  lessee  and  all  holding  under  him  hereby  engaging  to  pay  the  rent  aoove 
reserved,  and  double  rent  for  every  day  when  he  or  any  one  else  in  his  name  shall 
hold  on  to  the  "whole  or  any  part  of  said  tenement,  after  the  expiration  of  this  lease, 
or  of  its  forfeiture  for  non-payment  of  rent,  &c.  This  tenement  and  premises  to  be 
kept  free  of  any  nuisance  in  or  adjacent  thereto,  at  the  expense  of  the  said  lessee. 

(Signature  of  lessor.)     (Seal.) 

(Signature  of  lessee.)     (Seal.) 
(Witness.) 


(167.) 
What  is  called  a  Country  Lease,  in  Use  in  the  Western  States. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between        (name 

of  lessor)  of  the  of  in  the  County  of 

and  State  of  party  of  the  first  part,  and          (name  and  residence 

of  lessee)  party  of  the  second  part,  witnesseth,  That  the  said  party  of  the  first 
part  for  and  in  consideration  of  the  covenants  and  agreements  hereinafter  men- 
tioned, to  be  kept  and  performed  by  the  said  party  of  the  second  part,  his  execu- 
tors, administrators,  and  assigns,  has  demised  and  leased  to  the  said  party  of  the 
second  part  all  those  premises  situate,  lying  and  being  in  the  township  of 

County  of  State  of  known  and  described 

as  follows,  to  wit  (describe  the  premises  in  such  way  as  to  identify  them  perfectly  by 
situation,  metes,  and  bounds,  or  otherwise) 

To  Have  and  to  Hold  the  said  above-described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  and  his  executors,  administrators, 
and  assigns,  from  the  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  for  and  during,  and  until 

the  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  paying  rent  therefor  as  hereafter  stated. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  leasing  of  the 
premises  aforesaid,  by  the  said  party  of  the  first  part,  to  the  said  party  of  the 
second  part,  does  covenant  and  agree  with  the  said  party  of  the  first  part,  and  his 
heirs,  executors,  administrators,  and  assigns,  to  pay  the  said  party  of  the  first  part, 
as  rent  for  the  said  demised  premises,  the  sum  of  dollars,  annual 

rent,  payable  quarterly,  in  four  equal  quarterly  payments,  the  first  payment  to  be 
due  and  made  in  three  months  from  the  date  of  this  lease,  payable  at  the  (here 
state  the  place  where  the  rent  should  be  paid) 

And  the  said  party  of  the  second  part  further  covenants  with  the  said  party  of 
the  fl  st  part,  that'  at  the  expiration  of  the  time  in  this  lease  mentioned,  he  wilJ 
yield  up  the  said  demised  premises  to  the  said  party  of  the  first  part,  in  as  good 


FOKMS   OF  LEASES.  535 

condition  as  when  the  same  were  entered  upon  by  the  said  party  of  the  second 
part,  loss  by  fire  or  inevitable  accident,  and  ordinary  wear  excepted. 

It  is  further  agreed  by  the  said  party  of  the  second  part,  that  neither  he  nor  his 
legal  representatives  will  underlet  said  premises,  or  any  part  thereof,  or  assign  this 
lease,  without  the  written  assent  of  said  party  of  the  first  part,  first  had  and 
obtained  thereto. 

It  is  Expressly  Understood  and  Agreed  by  and  between  the  parties 
aforesaid,  that  if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  behind  or 
unpaid,  on  the  day  and  at  the  place  of  payment,  whereon  the  same  ought  to  be 
paid,  as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants  herein  con- 
tained, to  be  kept  by  the  said  party  of  the  second  part,  his  executors,  administra- 
tors, and  assigns,  it  shall  and  may  be  lawful  for  the  said  party  of  the  first  part,  bla 
heirs,  executors,  administrators,  agent,  attorney,  or  assigns,  at  his  or  their  election, 
to  declare  said  term  ended,  and  the  said  demised  premises,  or  any  part  thereof, 
either  with  or  without  process  of  law,  to  re-enter,  and  the  said  party  of  the  second 
part,  or  any  other  person  or  persons  occupying,  in  or  upon  the  same,  to  expel, 
remove,  and  put  out,  using  such  force  as  may  be  necessary  in  so  doing,  and  the 
said  premises  again  to  repossess  and  enjoy,  as  in  his  or  then*  first  and  former 
estate  ;  and  it  shall  be  the  duty  of  the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  to  be  and  appear  at  the  said  place  above  specified,  for 
the  payment  of  said  rent,  and  then  and  there  tender  and  pay  the  same  as  the  same 
shall  fall  due  from  time  to  time,  as  above,  to  the  said  party  of  the  first  part,  or  his 
agent  or  assigns ;  or  in  his  or  their  absence,  if  the  said  party  of  the  second  part 
shall  offer  to  pay  the  same  then  and  there,  such  offer  shall  prevent  said  forfeiture. 

And  it  is  expressly  understood  that  it  shall  not  be  necessary  in  any  event  for 
the  party  of  the  first  part  or  his  assigns,  to  go  on  or  near  the  said  demised  premises 
to  demand  said  rent,  or  elsewhere  than  at  the  place  aforesaid.  And  in  the  event 
of  any  rent  being  due  and  unpaid,  whether  before  or  after  such  forfeiture  declared, 
to  distrain  for  any  rent  that  may  be  due  thereon,  upon  any  property  belonging  to 
the  said  party  of  the  second  part,  whether  the  same  be  exempt  from  execution  or 
distress  by  law  or  not,  and  the  said  party  of  the  second  part,  hi  that  case,  hereby 
waives  all  legal  rights  which  he  now  has  or  may  have  to  hold  or  retain  any  such 
property,  under  any  exemption  laws  now  in  force  in  this  State,  or  in  any  other  way. 
Meaning  and  intending  hereby  to  give  to  the  said  party  of  the  first  part  and  his 
heirs,  executors,  administrators,  and  assigns,  a  valid  and  first  lien  upon  any  and  all 
the  goods,  chattels,  or  other  property  belonging  to  the  said  party  of  the  second 
part,  as  security  for  the  payment  of  said  rent  in  manner  aforesaid,  any  thing 
hereinbefore  contained  to  the  contrary  notwithstanding.  And  if  at  any  time  said 
term  shall  be  ended  at  such  election  of  said  party  of  the  first  part,  or  his  heirs, 
executors,  administrators,  or  assigns,  as  aforesaid,  or  in  any  other  way,  the  said 
party  of  the  second  part,  for  himself  and  his  executors,  administrators,  and  assigns, 
does  hereby  covenant,  promise,  and  agree  to  surrender  and  deliver  up  said  above- 
described  premises  and  property,  peaceably,  to  said  party  of  the  first  part,  or  hia 


536  LEASES. 

heirs,  executors,  administrators,  and  assigns,  immediately  upon  the  determination 
of  said  term  as  aforesaid ;  and  if  he  shall  remain  in  the  possession  of  the  same 

days  after  notice  of  such  default,  or  after  the  termination  of  this 
lease,  in  any  of  the  ways  above  named,  he  shall  be  deemed  guilty  of  a  forcible 
detainer  of  said  demised  premises,  and  shall  be  subject  to  all  the  conditions  and 
provisions  above  named,  and  to  eviction  and  removal,  forcibly  or  otherwise,  with 
or  without  process  of  law,  as  above  stated. 

And  it  is  further  covenanted  and  agreed  by  and  between  the  parties,  that  the 
party  of  the  second  part  shall  pay  and  discharge  all  costs  and  attorney's  fees  and 
expenses  that  shall  arise  from  enforcing  the  covenants  of  this  indenture  by  the 
party  of  the  first  part. 

In  Testimony  "Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

(Signature  of  lessor.)     (Seal.) 
(Signature  of  lessee.)     (Seal.) 

In  Presence  of 


(168.) 
A  Ground  Lease. 

This  Indenture,  Made  this  day  of  hi  the 

year  of  our  Lord  one  thousand  eight  hundred  and  sixty  between         (name 

and  residence  of  lessor)  party  of  the  first  part,  and  (name  and  residence  of 

lessee)  party  of  the  second  part,  witnesseth,  That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  covenants  and  agreements  hereinafter  mentioned, 
to  be  kept  and  performed  by  the  party  of  the  second  part,  hath  demised  and  leased 
to  the  party  of  the  second  part  all  those  premises  situate  in  the 
of  in  the  County  of  and  State  of 

known  and  described  as  follows,  to  wit  (here  give  such  description  of  the  premises  as 
shall  identify  them,  and  distinguish  them  from  any  other) 

To  Have  and  to  Hold  The  above-described  premises,  with  the  appurte- 
nances, unto  the  party  of  the  second  part,  from  the  day 
of  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  for  and  during,  and  until  the 

Anil  the  party  of  the  second  part,  hi  consideration  of  the  leasing  of  the  premises 
aforesaid,  does  covenant  and  agree  with  the  party  of  the  first  part  to  pay  to  the 
party  of  the  first  part  as  rent  for  said  demised  premises,  at  the  office  of 

in  the  sum  of  (state  the  sum  to  be  paid  as  annual 

rent)  in  four  equal  quarterly  payments,  each  of  them  the  sum  of 
dollars,  to  be  paid  on  the  first  (or  otfier)  day  of  the  months  of  (the  four  months  tr» 
which  the  rent  is  payable)  in  each  year  (or  describe  otherwise  the  terms  and  times  of 
the  payments  as  they  may  have  been  agreed  upon)  ;  and  also  that  the  said  party  of 
the  second  part  will  pay,  or  cause  to  be  paid,  all  water-rates,  and  all  taxes  and 


FORMS  OF  LEASES.  637 

assessments  that  may  be  laid,  charged  or  assessed  on  said  demised  premises,  pend- 
ing the  existence  of  this  lease ;  or  if  at  any  time  after  any  tax,  assessment,  or 
•water-rate  shall  have  become  due  or  payable,  the  party  of  the  second  part,  or  his 
legal  representatives,  shall  neglect  to  pay  such  water-rates,  tax,  or  assessment,  it 
may  be  lawful  for  the  party  of  the  first  part  to  pay  the  same  at  any  time  thereafter, 
and  the  amount  of  any  and  all  such  payments  so  made  by  the  party  of  the  first 
part  shall  be  deemed  and  taken,  and  are  hereby  declared  to  be,  so  much  additional 
and  further  rent,  for  the  above-demised  premises,  due  from  and  payable  by  the 
party  of  the  second  part ;  and  may  be  collected  in  the  same  manner,  by  distress  or 
otherwise,  as  is  hereinafter  provided  for  the  collection  of  other  rents  to  grow  due 
thereon. 

And  it  is  expressly  understood  and  agreed  by  the  said  party  of  the  second  part 
hereto,  for  himself  and  his  heirs,  executors,  administrators,  and  assigns,  that  the 
whole  amount  of  rent  reserved,  and  agreed  to  be  paid  for  said  above-demised 
premises,  and  each  and  every  instalment  thereof,  shall  be  and  is  hereby  declared 
to  be  a  valid  and  first  lien  upon  any  and  all  buildings  and  improvements  on  said 
premises,  or  that  may  at  any  time  be  erected,  placed,  or  put  on  said  premises  by 
said  party  of  the  second  part,  or  his  heirs,  executors,  and  administrators,  or  assigns, 
and  upon  his  or  their  interest,  in  this  lease,  and  the  premises  hereby  demised ;  and 
that  whenever,  and  as  often  as  any  instalment  of  rent  or  any  other  amount  above 
declared  to  be  deemed  and  taken  as  rent,  shall  become  due  and  remain  unpaid  for 
one  day  after  the  same  becomes  due  and  payable,  said  party  of  the  first  part,  his 
heirs,  executors,  administrators,  agent,  attorney,  or  assigns,  may  sell  at  public 
auction  to  the  highest  bidder  for  cash,  after  having  first  given  ten  days'  notice  of 
the  time  and  place  of  such  sale  in  some  newspaper  published  in  all 

the  buildings  and  improvements  on  said  premises,  and  all  the  right,  title,  and 
interest  acquired  by  said  party  of  the  second  part,  under  this  lease,  to  the  premises 
herein  described,  and  as  the  attorney  of  said  party  of  the  second  part  —  hereby 
irrevocably  constituted  —  may  make  to  the  purchaser  or  purchasers  thereof  a 
suitable  and  proper  transfer  bill  of  sale  or  deed  of  the  same  —  and  out  of  the 
proceeds  arising  from  such  sale,  after  first  paying  all  costs  and  expenses  of  such 
sale,  including  commissions  and  attorney's  fees  —  retain  to  himself  the  whole 
amount  due  on  said  lease,  up  to  the  date  of  said  sale,  rendering  the  surplus  (if  any) 
to  said  party  of  the  second  part,  his  heirs,  executors,  administrators,  agent,  attor- 
ney, or  assigns,  which  sale  shall  be  a  perpetual  bar  to  and  against  all  rights  and 
equities  of  said  party  of  the  second  part,  his  heirs  and  assigns  in  and  to  the  prop- 
erty sold. 

And  the  party  of  the  second  part  further  covenants  with  the  party  of  the  first 
part,  that,  at  the  expiration  of  the  tune  in  this  lease  mentioned,  he  will  yield  up 
said  demised  premises  to  the  party  of  the  first  part,  in  as  good  condition  as  when 
the  same  were  entered  upon  by  the  party  of  the  second  part,  loss  by  fire,  or 
inevitable  accident  and  ordinary  wear  exccpted. 

It  is  further  agreed,  by  the  party  of  the  second  part,  that  neither  he  nor  his 
legal  representatives  will  underlet  said  premises,  or  any  part  thereof,  or  assign  this 


538  LEASES. 

lease,  without  the  written  assent  of  said  party  of  the  first  part,  first  had  and 
obtained  thereunto,  nor  use  or  suffer  them  to  be  used  for  any  purpose  calculated  to 
injure  the  reputation  of  the  premises,  or  of  the  neighborhood,  or  to  impair  the 
value  of  the  surrounding  neighborhood  property  for  present  use  or  otherwise. 

It  is  Expressly  Understood  and  Agreed,  By  and  between  the  parties 
aforesaid,  that  if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  behind  or 
unpaid,  on  the  day  of  payment,  whereon  the  same  ought  to  be  paid,  as  aforesaid, 
or  if  default  shall  be  made  in  any  of  the  covenants  herein  contained  to  be  kept  by 
the  party  of  the  second  part,  his  executors,  administrators,  or  assigns,  it  shall  and 
may  be  lawful  for  the  party  of  the  first  part,  or  his  heirs,  executors,  administrators, 
agent,  attorney,  or  assigns,  at  his  or  their  election,  to  declare  said  term  ended,  and 
into  the  said  demised  premises,  or  any  part  thereof,  either  with  or  without  process 
of  law,  to  re-enter,  and  the  party  of  the  second  part  or  any  other  person  or  persons 
occupying,  in  or  upon  the  same,  to  expel,  remove,  and  put  out,  using  such  force  as 
may  be  necessary  hi  so  doing,  and  the  said  premises  again  to  repossess  and  enjoy, 
as  of  his  or  their  first  and  former  estate ;  and  to  distrain  for  any  rent  that  may  be 
due  thereon,  upon  any  property  belonging  to  the  party  of  the  second  part,  whether 
the  same  be  exempt  from  execution  and  distress  by  law  or  not ;  and  the  party  of 
the  second  part,  in  that  case,  hereby  waives  all  legal  rights  which  he  now  has,  or 
may  have,  to  hold  or  retain  any  such  property  under  any  exemption  laws  now  in 
force  hi  this  State,  or  in  any  other  way ;  meaning  and  intending  hereby  to  give  the 
party  of  the  first  part,  his  heirs,  executors,  administrators,  agent,  attorney,  or 
assigns,  a  valid  and  first  lien,  upon  any  and  all  the  goods,  chattels,  or  other  prop- 
erty belonging  to  the  party  of  the  second  part,  as  security  for  the  payment  of  said 
rent,  in  manner  aforesaid,  any  thing  hereinbefore  contained  to  the  contrary  notwith- 
standing. And  if  at  any  time  said  term  shall  be  ended  at  such  election  of  said 
party  of  the  first  part,  or  his  heirs,  executors,  administrators,  agent,  attorney,  or 
assigns,  as  aforesaid,  or  in  any  other  way,  the  party  of  the  second  part  does  hereby 
covenant  and  agree  to  surrender  and  deliver  up  said  above-described  premises  and 
property,  peaceably,  to  the  party  of  the  first  part,  or  his  heirs,  executors,  adminis- 
trators, agent,  attorney,  or  assigns,  immediately  upon  the  determination  of  said 
term,  as  aforesaid ;  and  if  the  said  party  of  the  second  part,  or  his  legal  represen- 
tatives, shall  remain  in  possession  of  the  same  one  day  after  notice  of  such  default, 
or  after  the  termination  of  this  lease,  in  any  of  the  ways  above  named,  he  or  they 
shall  be  deemed  guilty  of  a  forcible  detainer  of  the  premises,  and  shall  be  subject 
to  all  the  conditions  and  provisions  above  named,  and  to  eviction  and  removal, 
forcibly  or  otherwise,  with  or  without  process  of  law,  as  above  stated. 

And  it  is  further  understood  and  agreed  by  the  said  party  of  the  second  part, 
that  neither  the  right  given  in  this  lease,  to  said  party  of  the  first  part,  to  collect 
the  rent  that  may  be  due  under  the  terms  of  this  lease  by  sale,  or  any  proceedings 
under  the  same,  shall  hi  any  way  affect  the  right  of  said  party  of  the  first  part  to 
declare  this  lease  void  and  the  term  hereby  created  ended,  as  above  provided  upon 
default  made  by  said  party  of  the  second  part. 

And  the  said  party  of  the  first  part  hereby  waives  his  right  to  any  notice  from 


FOEMS  OF  LEASES.  539 

said  party  of  the  second  part,  of  Ms  election  to  declare  this  lease  at  an  end,  under 
any  of  its  provisions,  or  any  demand  for  the  payment  of  rent,  or  the  possession  of 
premises  leased  herein ;  but  the  simple  fact  of  the  non-payment  of  the  rent  reserved 
6haH  constitute  a  forcible  entry  and  detainer  as  aforesaid. 

The  said  party  of  the  second  part  further  agrees  not  to  remove  any  buildings  or 
other  improvements  from  said  premises,  without  written  consent  of  said  party  of 
the  first  part,  and  that  the  said  second  party  shall  pay  and  discharge  all  costs  and 
attorney's  fees  and  expenses  that  shall  arise  from  enforcing  the  covenants  of  this 
indenture,  by  the  party  of  the  first  part. 

It  is  further  understood  and  agreed,  That  all  the  conditions  and  covenants  con- 
tained in  this  lease  shall  be  binding  upon  the  heirs,  executors,  administrators,  and 
assigns  of  the  parties  to  these  presents  respectively. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

(Signature  of  the  lessor.)     (Seal.) 

(Signature  of  the  lessee.)     (Seal.) 
Signed,  Sealed  and  Delivered  in  Presence  of 


(169.) 

An  Assignment  of  Lease,  and  Ground-Kent. 

This  Indenture,  Made  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  (name  and 

residence  of  the  assignor)  party  of  the  first  part,  and  (name  and  residence  of 

the  assignee)  party  of  the  second  part,  witnesseth,  That  the  said  party  of  the  first 
part,  for  and  in  consideration  of  the  sum  of  dollars,  lawful  money 

of  the  United  States  of  America,  unto  him  in  hand  well  and  truly  paid  by  the  said 
party  of  the  second  part,  at  the  time  of  the  execution  hereof,  the  receipt  whereof 
is  hereby  acknowledged,  by  these  presents  does  grant,  bargain,  sell,  assign,  release, 
and  confirm  unto  the  said  party  of  the  second  part  a  certain  indenture,  made  and 
executed  on  the  day  of  in  the  year  of  our  Lord 

eighteen  hundred  and  whereby  the  said  party  of  the  first  part  leased  to 

one  (name  of  the  lessee  in  the  lease  here  assigned)  certain  premises  therein 

described  as  follows  (here  copy  the  description  of  the  premises  in  that  lease)  reserving 
a  certain  rent,  payable  to  said  party  of  the  first  part ;  that  is  to  say  (here  slate  the 
rent  reserved  in  that  lease)  payable  (here  state  the  times  and  terms  of  payment) 
together  with  the  said  rent  to  the  said  party  of  the  first  part,  payable  as  aforesaid. 

Together  with  all  right  and  power  of  entry  and  distress  and  of  re-entry,  and 
all  other  the  covenants,  ways,  means,  and  remedies  for  the  recovery  thereof,  and  all 
and  singular  the  rights,  incidents,  and  appurtenances  whatsoever,  thereunto  belong- 
ing, and  the  reversions  and  remainders  thereof,  and  all  the  estate,  right,  title, 
interest,  property,  claim,  and  demand  whatsoever,  of  him  the  said  party  of  the  first 
36 


540  LEASES. 

part,  or  his  legal  representatives,  either  in  law  or  equity,  as  well  of,  in,  and  to  the 
said  yearly  rent  or  sum  hereby  granted  and  assigned,  as  also  of,  in,  and  to  the 
said  lot  or  piece  of  ground,  with  the  appurtenances,  for  and  out  of  which 
the  same  rent  is  issuing  and  payable.  To  have  and  to  hold,  receive  and  take,  all 
and  singular  the  hereditaments  and  premises  hereby  granted  and  assigned,  with  the 
rights,  remedies,  incidents,  and  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  to  and  for  the  only  proper  use  and  behoof  of  him  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  forever.  And  the  said  party 
of  the  first  part,  and  his  heirs,  all  and  singular  the  hereditaments  and  premises 
hereby  granted  and  assigned,  with  the  rights,  remedies,  incidents,  and  appurte- 
nances, unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  against  him 
the  said  party  of  the  first  part  and  his  heirs,  and  against  all  and  every  other  person 
and  persons  whomsoever,  lawfully  claiming  or  to  claim,  by,  from,  or  under  him  or 
them,  or  any  of  them,  shall  and  will  warrant  and  forever  defend  by  these  presents. 

In  Witness  Whereof,  The  said  parties  to  these  presents  have  hereunto 
interchangeably  set  their  hands  and  seals  the  day  and  year  hereinbefore  first 
written. 

(Signature  of  the  assignor.')     (Seal.) 
(Signature  of  the  assignee.')     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of  us, 
(  Witnesses.') 

Received  the  day  of  the  date  of  the  above  indenture  of  the  above-named 
the  sum  of  being  the  full  consideration 

money  above  mentioned. 

(Signature  of  the  assignor.) 
(Witness.) 

On  the  day  of  Anno  Domini,  18        before 

me,  personally  appeared  the  above-named  (name  of  the 

assignor)  and  in  due  form  of  law  acknowledged  the  above  indenture  to  be  his  free 
act  and  deed,  and  desired  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

(Signature.)     (Seal.) 


(170.) 

A  Lease  containing  CJiattel  Mortgage  Covenants,  to  secure  tlie 

Kent. 

This  Indenture,  Made  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  between  (name  and 

residence  of  lessor)  of  the  first  part,  and  (name  and  residence  of  the  lessee)  of 


FORMS  OF  LEASE&.  541 

the  second  part,  witnesseth,  That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  covenants  and  agreements  hereinafter  mentioned,  to  be  kept  and 
performed  by  the  said  party  of  the  second  part,  his  executors,  administrators,  and 
assigns,  has  demised  and  leased  to  the  said  party  of  the  second  part  all  those 
premises  situate,  lying,  and  being  in  the  City  of  in  the  County  of 

and  in  the  State  of  known  and  described  as  follows,  to  wit 

(here  describe  the  premises  as  in  Form  158) 

To  Have  and  to  Hold  The  said  above-described  premises,  with  the  appurte- 
nances, unto  the  said  party  of  the  second  part,  his  executors,  administrators,  and 
assigns,  from  the  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  for  and  during,  and  until  the 

day  of  hi  the  year  of  our  Lord  one  thousand  eight  hundred  and 

And  the  said  party  of  the  second  part,  in  consideration  of  the  leasing 
of  the  premises  aforesaid,  by  the  said  party  of  the  first  part  to  the  said  party  of  the 
second  part,  does  covenant  and  agree  with  the  said  party  of  .the  first  part,  his  heirs, 
executors,  administrators,  and  assigns,  to  pay  the  said  party  of  the  first  part,  as 
rent  for  said  demised  premises,  the  sum  of  dollars,  in  four  equal 

quarterly  payments  of  dollars  each  ($  ),  payable          (here 

state  the  days  when  the  rent  should  be  paid)  at  the  house  (or  office  or  counting-room 
or  store)  of  said  party  of  the  first  part,  in  said  city  of 

And  it  is  further  agreed  by  the  said  party  of  the  second  part,  in  consideration  of 
the  leasing  of  the  premises  aforesaid,  that  the  said  party  of  the  second  part  shall 
and  will  pay;  or  cause  to  be  paid,  promptly,  as  soon  as  the  same  becomes  due,  all 
assessments  for  water-rents  that  may  be  levied  upon  said  demised  premises  during 
the  continuance  of  this  lease,  and  save  said  premises  and  the  party  of  the  first  part 
harmless  from  all  charges  and  expenses  connected  with  the  supply  of  water  to  said 
premises.  And  the  said  party  of  the  second  part  hereby  covenants  and  sigrees,  in 
case  of  default  in  the  payment  of  any  water-rent  levied  upon  said  premises  during 
said  term,  to  pay  unto  said  party  of  the  first  part,  as  liquidated  damages  for  such 
breach  of  covenant,  double  the  sum  of  such  rent  so  assessed  upon  said  premises  as 
aforesaid. 

And  the  said  party  of  the  second  part  further  covenants  with  the  said  party  of 
the  first  part,  that  he  will  keep  said  premises  in  a  clean  and  healthy  condition, 
in  accordance  with  the  ordinances  of  the  city,  and  directions  of  the  proper  authori- 
ties. 

It  is  further  agreed  by  the  said  party  of  the  second  part,  that  neither  he  nor  his 
legal  representatives  will  underlet  said  premises  or  any  part  thereof,  or  assign  this 
lease,  without  the  written  assent  of  the  said  party  of  the  first  part  first  had  and 
obtained  thereto. 

This  Indenture  Further  Witnesseth,  That  the  said  party  of  the 
second  part,  for  and  in  consideration  of  the  sum  of  (insert  the  whole  sum  to  be 

paid  under  the  lease)  dollars,  in  hand  paid,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  hereby  grant,  sell,  convey,  and  confirm  unto  the  said  party  of  the  first 


542  LEASES. 

part,  hie  heirs  and  assigns,  all  and  singular  the  following-described  goods  and 
chattels,  to  wit  (here  give  a  schedule  or  list  of  the  articles,  describing  them  suffi- 
ciently) 

Together  with  all  and  singular  the  appurtenances  thereunto  belonging  or  in 
any  wise  appertaining :  to  have  and  to  hold  the  same  unto  the  said  party  of  the 
first  part,  his  heirs,  executors,  administrators,  and  assigns,  to  his  and  their  sole  use 
forever.  And  the  said  party  of  the  second  part,  for  himself  and  for  his  heirs, 
executors,  and  administrators,  does  covenant  and  agree  with  the  said  party  of  the 
first  part  and  his  heirs,  executors,  administrators,  and  assigns,  that  he  is  law- 
fully possessed  of  the  said  goods  and  chattels  as  of  his  own  property;  that  the  same 
are  free  from  all  incumbrances,  and  that  he  will,  and  his  heirs,  executors,  and 
administrators  shall,  warrant  and  defend  the  same  unto  the  said  party  of  the  first 
part,  and  his  heirs,  executors,  administrators,  and  assigns,  against  the  lawful  claims 
and  demands  of  all  persons. 

Provided,  Nevertheless,  That  if  the  said  party  of  the  second  part,  or  his 
heirs,  executors,  administrators,  or  assigns,  shall  well  and  truly  pay,  or  cause  to  be 
paid,  unto  the  said  party  of  the  first  part  or  his  heirs,  executors,  administrators,  01 
assigns,  the  said  sum  of  dollars,  rent,  above  reserved,  punctually,  and 

in  the  manner  and  at  the  tunes  and  place  above  mentioned,  then  and  from  thence- 
forth these  presents,  and  every  thing  herein  contained,  shall  cease,  and  be  null  and 
void. 

And  Provided  Also,  That  it  shall  be  lawful  for  the  said  party  of  the  second 
part,  his  heirs,  executors,  and  administrators,  to  retain  possession  of  the  said  granted 
goods  and  chattels,  and  at  his  own  expense  to  keep  and  to  use  and  enjoy  the 
same,  until  the  said  party  of  the  second  part,  or  his  heirs,  executors,  administrators, 
or  assigns,  shall  make  default  in  the  payment  of  said  rent  above  specified,  at  the 
tune  or  times,  and  in  the  manner  hereinbefore  contained,  or  unless  the  said  party 
of  the  first  part  shall  fear  diminution,  removal,  or  waste  for  want  of  proper  care,  or 
if  the  said  party  of  the  second  part  shall  sell  or  assign,  or  attempt  to  sell  or  assign, 
said  goods  and  chattels,  or  any  part  thereof,  or  if  any  writ  issued  from  any  court 
shall  be  levied  on  any  part  of  the  above-described  goods  and  chattels  —  that  then; 
and  hi  any  of  the  aforesaid  cases,  all  of  said  sum  of  dollars,  above 

reserved  as  rent  for  said  demised  premises,  shall  become  due  and  payable,  and  the 
said  party  of  the  first  part,  his  heirs,  executors,  administrators,  and  assigns,  agents, 
or  attorneys,  or  any  of  them,  may  elect  to  take  possession  of  the  said  property,  and 
for  that  purpose  may  pursue  the  same  or  any  part  thereof,  wherever  it  may  be 
found,  and  also  may  enter  any  of  the  premises  of  the  said  party  of  the  second  part. 
with  or  without  force  or  process  of  law,  wherever  the  said  goods  and  chattels  may 
be  or  be  supposed  to  be,  and  search  for  the  same,  and,  if  found,  to  take  possession 
of  and  remove,  and  sell  and  dispose  of  said  property,  or  so  much  thereof  as  may  be 
necessary  to  pay  the  rent  due,  and  the  balance  of  rent  for  the  whole  unexpired 
term,  whether  due  or  not  due,  at  public  auction,  to  the  highest  bidder,  after  giving 
ten  days'  notice  of  the  time,  place,  and  terms  of  sale,  together  with  a  descrip- 


POEMS   OF  LEASES.  543 

tion  of  the  property  to  be  sold,  either  by  publication  in  some  newspaper  in  the  city 
°f  or  by  similar  notices  posted  up  hi  three  public  places  hi  the  vicinity 

of  such  tale,  or  at  private  sale,  with  or  without  notice,  for  cash  or  on  credit,  as  the 
said  party  of  the  first  part,  or  his  heirs,  executors,  administrators,  or  assigns,  agents 
or  attorneys,  or  any  of  them,  may  elect ,  and  out  of  the  money  arising  from  such 
sale,  to  retain,  first,  all  costs  and  charges  for  pursuing,  searching,  taking,  removing, 
keeping,  storing,  advertising,  and  selling  of  such  property,  goods,  chattels,  and 
effects,  and  all  prior  liens,  together  with  the  rent  due  and  the  balance  of  rent  for 
the  whole  unexpired  term,  whether  due  or  not  due,  rendering  the  overplus  of  the 
money  arising  from  such  sale,  and  the  remainder  of  said  goods  and  chattels,  if  any 
there  shall  be,  unto  the  said  party  of  the  second  part,  or  his  legal  representatives. 

It  is  Expressly  Understood  and  Agreed,  by  and  between  the  parties 
aforesaid,  that  if  the  rent  above  covenanted  to  be  paid,  or  any  part  thereof,  shall  be 
behind  or  unpaid  on  the  day  of  payment  whereon  the  same  ought  to  be  paid,  as 
aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants  heroin  contained,  to 
be  kept  by  the  said  party  of  the  second  part,  his  executors,  administrators,  and 
assigns,  it  shall  and  may  be  lawful  for  the  said  party  of  the  first  part,  his  heirs,  ex- 
ecutors, administrators,  agent,  attorney,  or  assigns,  at  his  or  their  election,  to  declare 
said  term  ended,  and  into  the  said  demised  premises,  or  any  part  thereof,  either 
with  or  without  process  of  law,  to  re-enter,  and  that  said  party  of  the  second  part, 
or  any  other  person  or  persons  occupying,  in  or  upon  the  same,  to  expel,  remove,  and 
put  out,  using  such  force  as  may  be  necessary  in  so  doing,  and  the  said  premises 
again  to  repossess  and  enjoy,  as  in  his  or  their  first  and  former  estate,  and  to  dis- 
train for  any  rent  that  may  be  due  thereon,  upon  any  property  belonging  to  the  said 
party  of  the  second  part,  whether  the  same  be  exempt  from  execution  or  distress  by 
law  or  not,  and  the  said  party  of  the  second  part,  in  that  case,  hereby  agrees  to 
waive  all  legal  right  which  he  may  have  to  hold  or  retain  any  such  property,  under 
any  exemption-law  now  in  force  in  this  State,  or  in  any  other  way.  And  if  at  any 
time  said  term  shall  be  ended  at  such  election  of  said  party  of  the  first  part,  or  his 
heirs,  executors,  administrators,  or  assigns,  as  aforesaid,  or  hi  any  other  way,  the  said 
party  of  the  second  part,  or  his  executors,  administrators,  or  assigns,  does  hereby 
covenant  and  agree  to  surrender  and  deliver  up  said  above-described  premises  and 
property,  peaceably,  to  said  party  of  the  first  part,  or  his  heirs,  executors,  adminis- 
trators, and  assigns,  immediately  upon  the  determination  of  said  term  as  aforesaid, 
and  if  he  shall  remain  in  possession  of  the  same  after  such  default,  or  after  the  ter- 
mination of  this  lease  in  any  of  the  ways  above  named,  he  shall  be  deemed  guilty 
of  a  forcible  detainer  of  said  demised  premises,  and  shall  be  subject  to  all  the  con- 
ditions and  provisions  above  named,  and  to  eviction  and  removal,  forcibly  or  other- 
wise, with  or  without  process  of  law,  as  above  stated. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

(Signature  of  lessor.)     (Sea!.) 

(Signature  of  lessee.)     (Seal.) 
In  Presence  of 


544  LEASES. 

STATE  OP 

COUNTY  OF 

I,  Justice  of  the  Peace  in  and  for  said  county,  do  hereby  certify 

that  this  lease  and  mortgage  was  duly  acknowledged  before  me  by  the  above-named 
(name  of  lessee)  this  day  of  A.D.  18 

(Seal) 

(171.) 
A  Building  Lean?. 

This  Deed  of  Lease,  Made  and  entered  into,  in  duplicate,  this 
day  of  A.D.  186     ,  between  (name  of  lessor)  of 

County  of  and  State  of  party  of  the  first  part,  and 

(name  of  lessee)  of  County  of  and  State  of 

party  of  the  second  part : 

Witnessetli,  That  the  said  party  of  the  first  part,  in  consideration  of  the 
covenants,  agreements,  and  stipulations  hereinafter  mentioned,  as  well  as  the 
yearly  rent  of  dollars,  to  be  paid  to  him  in  four  equal  quarterly  pay- 

ments in  each  year  (the  first  payment  to  be  made  on  the  day  of 

A.D.  186     ),  doth  by  these  presents  lease  to  the  said  party  of  the  second 
part  for  the  term  of  years,  which  said  term  begins  on  the  day 

of  186     ,  the  following-described  lot  of  land,  to  wit  (here  describe  the 

premises  as  in  Form  15b) 

The  said  party  of  the  second  part,  for  himself  and  his  heirs,  hereby  covenants 
with  said  lessor  and  his  heirs  to  pay  said  rent  as  aforesaid,  and  also  to  pay  all 
city,  county,  and  State  taxes,  and  all  other  taxes  and  demands  of  every  description, 
nature,  or  kind  whatever,  which  may  from  time  to  time  be  legally  required  or 
demanded  of  said  premises,  whether  general  tax  or  special  tax. 

Every  failure,  first,  to  pay  the  said  rent,  or  any  part  thereof,  when  it  is  respec- 
tively made  payable ;  or,  second,  to  pay  the  said  city,  county,  and  State  taxes,  and 
all  other  taxes  and  demands,  or  any  part  thereof  (legally  required  or  demanded  of 
said  premises,  within  the  year  the  same  shall  become  due,  assessed  to  either  said 
lessor,  his  heirs  or  representatives,  or  to  said  lessee  or  his  representatives) ;  or, 
third,  to  keep  and  perform  any  of  the  other  covenants,  agreements,  or  stipulations 
herein  mentioned,  shall  make  and  create  a  forfeiture  of  this  lease,  and  a  termination 
of  the  term  for  which  the  above  premises  were  let,  and  all  the  estate  hereby  con- 
veyed shall  be  absolutely  void,  if  so  determined,  at  any  day  or  time  however  distant, 
after  such  failure,  by  notice  in  writing  to  that  effect,  given  by  said  lessor,  his  heirs 
or  assigns,  to  said  lessee  or  his  assigns ;  which  said  notice  may  be  served  by  posting 
a  copy  or  duplicate  of  the  same  up  at  one  of  the  most  public  places  on  said  prem- 
ises, or  by  delivering  a  copy  or  duplicate  of  such  notice  to  said  lessee  or  his  assigns. 

This  lease  of  said  premises,  or  any  part  thereof,  is  not  to  be  assigned,  under 


FORMS   OF  LEASES.  545 

penalty  of  forfeiture,  without  the  written  consent  of  said  lessor,  his  heirs  or  assigns. 
At  the  expiration  of  this  lease,  the  said  premises  to  be  delivered  to  said  lessor,  his 
heirs,  or  assigns.  The  said  lessee,  and  all  who  hold  under  him,  hereby  engage  to 
pay  double  rent  for  every  day  they  or  any  one  else  in  their  name  shall  hold  on  to 
the  whole  or  any  part  of  said  premises,  after  the  expiration  of  this  lease,  or  after 
forfeiture  thereof. 

The  said  lessee  is,  under  penalty  of  forfeiture,  bound  to  keep  said  premises  free 
from  any  disorderly,  bawdy,  or  gambling  establishments,  dram-shops,  tippling-shops, 
beer-houses,  or  any  nuisances  whatsoever.  And  hi  case  of  any  forfeiture  of  this 
lease,  the  said  lessor,  his  heirs  and  assigns,  may  forthwith  take  possession  of  said 
premises,  with  all  the  improvements  thereon,  and  shall  be  entitled  to  the  same,  any 
custom,  usage,  or  law,  to  the  contrary  notwithstanding. 

All  improvements  erected  on  said  premises  by  said  lessee  or  his  assigns,  or  by 
any  one  who  may  claim  under  them,  are  bound  for  the  payment  of  each  quarterly 
instalment  of  rent,  and  for  the  city,  county,  and  State  taxes,  and  all  other  taxes 
and  demands  as  aforesaid,  and  for  any  arrears  of  rent  or  taxes ;  and  in  case  of  the 
punctual  payment  of  the  rent  and  taxes,  as  herein  specified,  the  said  lessee  or  his 
assigns  is  hereby  authorized  to  remove  all  such  improvements  (and  no  others),  at 
the  expiration  of  this  lease,  which  he  or  any  one  who  may  claim  under  him,  may 
have  erected  on  said  premises  during  said  term. 

In  Testimony  Whereof,  The  parties  hereto  have  hereunto  set  their  hands 
and  seals  to  duplicate  leases  the  day  and  year  aforesaid. 

(Signature  of  lessor.)     (Seal.) 
(Signature  of  lessee.)      (Seal.) 

In  Presence  of 

(172.) 
A    Mining    Lease. 

This    Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

(name  and  residence  of  the  lessor)  of  the  first  part,  and  (name  and  residence 

of  the  lessee)  of  the  second  part,  witnesseth,  That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  covenants  and  agreements  hereinafter  contained  on 
the  part  of  the  said  party  of  the  second  part,  and  of  one  dollar  in  hand  paid  to  the 
said  party  of  the  first  part,  the  receipt  whereof  is  hereby  acknowledged,  has  grantee 
and  conveyed,  and  by  these  presents  does  grant  and  convey  to  the  said  party  of  the 
second  part,  his  heirs,  executors,  administrators,  and  assigns,  the  right  of  entering 
in  and  upon  the  lands  hereinafter  described,  for  the  purpose  of  searching  for  mm- 
oral  and  fossil  substances,  and  of  conducting  mining  and  quarrying  operations,  to 
any  extent  he  or  they  may  deem  advisable  (but  not  to  hold  possession  of  any  part 
of  said  lands  for  any  other  purpose  whatsoever)  paying  for  the  sife 
any  kind,  necessary  thereto,  a  reasonable  rent. 


546  LEASES. 

The  said  lands  are  situated  (here  state  the  situation  of  (he  premises  leased,  and 
describe  them  by  metes  and  bounds,  dimensions,  and  references  to  other  boundaries,  so 
as  to  distinguish  them  perfectly) 

And  the  said  party  of  the  second  part  hereby  agrees  that  he  or  his  heirs,  execu- 
tors, administrators,  or  assigns  will  pay  or  cause  to  be  paid  to  the  said  party  of 
the  first  part,  his  heirs  or  assigns,  an  annual  rent  of  the  amount  of 
dollars,  in  four  equal  quarterly  payments,  payable  severally  on  the  following  days 
(here  state  the  days  when  the  payments  are  to  be  made,  or  whatever  other  terms  or  times 
are  agreed  upon),  and  also  covenants  that  no  damage  shall  be  done  to  or  upon  saia 
lands  and  premises,  other  than  may  be  necessary  in  conducting  said  operations. 
And  it  is  agreed  and  covenanted  by  and  between  the  parties  hereunto,  that  this 
lease  shall  be  and  remain  in  full  force  and  effect  (subject  to  the  proviso  hereinafter 
stated)  years,  from  the  date  hereof,  and  no  longer. 

But  the  said  parties  of  the  first  and  the  second  part,  each  for  themselves,  their 
heirs,  executors,  administrators,  and  assigns,  covenant  and  agree,  and  this  indenture 
is  made  with  this  express  proviso,  that  if  no  mineral  or  fossil  substance  be  mined 
or  quarried,  as  now  contemplated  by  said  parties,  within  the  period  of 
years,  from  the  present  tune,  then  these  presents,  and  every  thing  contained  herein, 
shall  cease  and  be  forever  null  and  void. 

In  Testimony  Whereof*  the  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

(Signature  of  lessor.)     (Seal.) 
(Signature  of  lessee.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 


(173.) 
A  Lease  of  Land  supposed  to  contain  Oil,  Salt,  or  other  Minerals. 

Articles  of  Agreement,  Made  and  concluded  this  day 

of  A.D.  186     ,  between  (name  of  lessor)  of  the  township  of 

County  of  and  State  of 

party  of  the  first  part,  and  (name  and  residence  of  lessee)  party  of  the  second 

part.  Witnesseth,  That  the  said  party  of  the  first  part  for  himself  and  his  heirs, 
executors,  administrators  and  assigns,  for  and  in  consideration  of  the  sum  of  one 
dollar,  the  receipt  of  which  is  hereby  acknowledged,  and  for  the  further  considera- 
tion hereinafter  mentioned,  and  on  account  of  covenants  hereinafter  contained, 
hereby  leases  to  the  said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors and  assigns,  the  following-described  piece  or  parcel  of  land,  situated  hi  the 
township  of  County  of  and  State  of  bounded 

and  described  as  follows  (describe  the  premises  as  in  the  preceding  F<rm.)  The  said 
land  more  full]- described  in  deed  of  conveyance  by  (name  of  the  grantor  to 

the  ksscr)  to  th«  said  party  of  the  first  part,  containing  acres, 


FOEMS   OP  LEASES,   ETC.  547 

more  or  less,  for  the  purpose  of  boring,  mining,  and  operating  for  oil,  salt,  and 
other  minerals  on  said  land,  for  the  term  of  years. 

Said  second  parties  to  have  the  exclusive  right  to  mine  for  oil,  salt,  and  other 
minerals,  on  said  land,  during  the  continuance  of  said  term :  to  have  the  privilege 
of  taking  sufficient  coal  and  wood  for  conducting  said  boring  and  mining  opera- 
tions, and  timber  -for  derricks  and  mill-frames  and  for  refineries,  and  the  right  to 
erect  all  necessary  buildings  upon  said  premises  for  carrying  on  the  business  of 
boring  for  oil,  and  mining,  refining  and  storing  away  oil  and  other  minerals ;  and 
to  have  the  necessary  roads  to  and  from  any  well  or  wells  that  may  be  bored,  or 
any  mines ;  and  to  have  possession  whenever  they  shall  be  ready  to  commence 
operations.  And  in  case  successful  in  obtaining  oil  or  other  minerals,  agree  to 
deli ver  to  the  said  party  of  the  first  part  (here  stale  the  part  or  proportion  ichich  is 
to  be  given  to  Hie  lessor)  of  all  oil,  salt,  or  other  minerals  obtained.  Said  party  of 
the  first  part  to  find  his  own  barrels,  and  remove  the  oil  and  other  minerals  be- 
longing to  him,  as  often  as  required  by  the  second  parties.  And  in  case  said  second 
parties  should  not  be  successful  in  obtaining  oil  or  other  minerals,  they  shall  have 
the  right  to  remove  all  engines,  tools,  machinery,  and  buildings.  And  further,  it  is 
agreed  that  said  second  parties  have  the  right  to  sub-lease  said  land  for  the  pur- 
pose of  boring  for  oil  or  other  minerals  ;  the  said  lessee  or  lessees  beihg  granted 
all  the  rights  and  privileges  herein  granted  to  the  said  party  of  the  second  part, 

Witness  our  hands  and  seals  this  day  of  186  . 

(Signature  of  lessor.)  (Seal.) 
(Signature  of  lessee.)  (Seal.) 
Witnesses. 

Personally  appeared  before  me,  a  Justice  of  the  Peace 

in  and  for  the  township  of  within  the  County  aforesaid 

and  did  acknowledge  the  signing  and  sealing  of  the  above  agreement  to  be 
act  and  deed. 

Given  under  my  hand  this  day  of  186    . 

Justice  ofthf  Peace. 


(174.) 
An  Assignment  of  a  Lease, 

Know  all  Men  by  these  Presents,  That  I,  (name  and  residence 

of  assignor)  for  and  in  consideration  of  the  sum  of  dollars, 

I*wful  money  of  the  United  States,  to  me  duly  paid,  by  (name  and  residence 

of  assignee)  have  sold,  and  by  these  presents  do  grant,  convey,  assign,  transfer  and 
Bet  over,  unto  the  said  (name  of  assignee)  a  certain  indenture  of  lease,  bearing 

date  the  day  of  m  tue  vear  one  thousand 

eight  hundred  and  made  by  (name  of  the  lessor  in  the 

leuu  .issigned)  whereby  he  leases  to  me  the  following-described  premises          (here 


548  LEASES. 

describe  the  premises  briefly),  with  all  and  singular  the  premises  therein  mentioned 
and  lescribed,  and  the  buildings  thereon,  together  with  the  appurtenances. 

T>3  Have  and  to  Hold  the  same  unto  the  said  (the  name  of  the 

assignee)  and  his  assigns,  from  the  day  of  for 

and  during  all  the  rest,  residue,  and  remainder  yet  to  come  of  and  in  the  term  of 

years  mentioned  in  the  said  indenture  of  lease,  and  all  my 

rights  and  privileges  in  and  under  said  lease ;  subject  nevertheless  to  the  rent9} 
covenants,  conditions  and  provisions  therein  also  mentioned.  And  I  do  hereby 
covenant,  grant,  promise  and  agree,  to  and  with  the  said  (name  of  the  assignee) 
that  the  said  assigned  premises  now  are  free  and  clear  of  and  from  all  former  and 
other  gifts,  grants,  bargains,  sales,  leases,  judgments,  executions,  back  rents,  taxes, 
assessments,  and  incumbrances  whatsoever. 

In  "Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 
day  of  one  thousand  eight  hundred  and 

(Signature.')     (Seal.) 
Sealed  and  Delivered  in  the  Presence  of 


(175.) 
Landlord's  Notice  to  quit  for  Non-Payment  ofHent;  Short  Form. 

STATE  OF  ss.  A.D.  186 

To  (name  of  tenant).     You  being  in  possession  of  the  following-described 

premises,  which  you  occupy  as  my  tenant  (here  describe  the  premises  sufficiently  to 
identify  them)  hi  the  city  (or  township)  of  and  county 

aforesaid,  are  hereby  notified  to  quit  and  deliver  up  to  me  the  premises  aforesaid, 
in  fourteen  days  from  this  date,  according  to  law,  your  rent  being  due  and  unpaid. 
Hereof  fail  not,  or  I  shall  take  a  due  course  of  law  to  eject  you  from  the  same. 
Witness.  (Signature.) 

(17G.) 

Landlord's  Notice  to  quit  for  Non-Payment  of  Kent}  another 

Form. 

STATE  OF  CITY  OF  (date)  18 

You  are  hereby  notified  to  quit  the  premises  situate  (state  the  situation 

of  the  premises,  giving  township  or  city,  and  street,  and  number)  which  I  have  leased 
to  you,  reserving  rent,  or  pay  and  satisfy  the  rent  due  and  in  arrear,  being  $ 
which  amount  was  due  on  the  day  of  18        and 

is  hereby  dem»  nded  (you  having  neglected  or  refused  to  pay  the  amount  so  reserved, 
as  often  as  the  same  has  grown  due,  according  to  the  terms  of  our  contract,  and 


FORMS  OF  LEASES,  ETC.  549 

there  being  no  goods  on  the  premises  adequate  to  pay  the  rent  so  reserved,  except 
such  articles  as  are  exempt  from  levy  and  sale  by  the  laws  of  this  State)  within 
days  from  the  date  hereof,  or  I  shall  proceed  against  you  as  the  law 
directs.  Yours,  &c. 

(Signature.) 
To     (name  of  tenant) 


(177.) 
Landlord's  Notice  to  pay  Kent  due,  or  quit. 

STATE  OF 


.  ss. 
COUNTY  OF 

(Name  of  landlord)  landlord,  against  (name  of  tenant)  tenant 

Take  Notice,  That  you  are  justly  indebted  unto  me  in  the  sum  of 
for  rent  of  (home,  store,  or  other  premises,  describing  them  generally)  from  (date  when 
the  rent  teas  due  and  payable),  which  you  are  required  to  pay  on  or  before  the  expi- 
ration of  three  days  from  the  day  of  the  service  of  this  notice,  or  surrender  up  the 
possession  of  the  said  premises  to  in  default  of  which  shall 

proceed  under  the  provisions  of  law  to  recover  the  possession  thereof. 

Dated  this  day  of  18 

(Name  of  the  landlord)  Landlord. 

To  (name  of  the  tenant)  Tenant,  in  possession  of  the  premises  above  specified. 


(178.) 
Landlord's  Notice  to  leave  at  End  of  the  Term. 

To  (name  and  address  of  the  tenant) 

SIR,  —  Being  in  the  possession  of  a  certain  messuage  or  tenement,  with  the 
appurtenances,  situate  (describe  the  premises  briefly)  which  said  premises  were 
demised  to  you  by  me  for  a  certain  term,  to  wit,  from  the  day  of 

A.D.  18        until  the  day  of 

A.D.  18  and  which  said  term  will  terminate  and  expire  on  the  day  and  year 
last  aforesaid,  I  hereby  give  you  notice,  that  it  is  my  desire  to  have  again  and  re- 
possess the  said  messuage  or  tenement,  with  the  appurtenances,  and  I  therefore  do 
hereby  require  you  to  leave  the  same  upon  the  expiration  of  the  said  hereinbefore 
mentioned  term. 

Witness  my  hand  this  day  of  city  of 

A.D.  18. 

(Witness.)  (Signature.) 


550          MORTGAGES  OF  PERSONAL  PROPERTY. 

(1T9.) 


STATE  OF  ss.  A.D.  186 

To  (name  of  tenant).    You  being  in  possession  of  the  following-described 

premises,  which  you  occupy  as  my  tenant  at  will  (describing  them  sufficiently  to 
identify  them)  in  the  (city  and  street)  aforesaid,  are  hereby  notified  to  quit  and 
deliver  up  to  me  the  premises  aforesaid  (on  stick  a  day,  stating  here  Hie  day  as  far 
distant  as  is  made  necessary  by  the  requisite  length  of  notice)  according  to  law,  it 
being  my  intention  to  determine  your  tenancy  at  wilL  Hereof  fail  not,  or  I  shall 
take  a  due  course  of  law  to  eject  you  from  the  same. 

( Witness.)  (Signature.) 

(180.) 
Receipt  for  Kent,  in  Use  in  New  York. 

Rent  payable 

The  tenant  mentioned  below  hereby  agrees  to  pay  the  rent  of  the  premises  occupied  and 
used  by  on  the  first  day  of  the  term ;  and  engages  to  clean  the  entries, 

stairs,  stoops,  and  privy  thereof,  weekly,  in  turn  with  other  occupants,  and  not  incumber  the 
same  with  furniture,  fuel,  or  rubbish,  nor  keep  any  hog,  dog,  or  fowl,  nor  deposit  ashes  c« 
garbage  on  said  premises,  nor  in  the  sinks  or  privies,  nor  split  wood  on  the  hearth,  floor,  o» 
yard. 

NEW  YORK,  186 

Received  from  (name  of  tenant  paying)  dollars,  for  months' 

rent,  from  18  to  18  for 

(stone,  brick,  or  other)  house,  No  Street,  in  the  city  of  New  York. 

* 


CHAPTER  XXXII. 


MORTGAGES     OF     GOODS     AJVI>     CUJLTTEUS,     OR 

IPROPJETITY. 


IT  was  said  that  mortgages  are  now  often  made  of  personal  prop- 
erty. The  instrument  need  not  be  so  formal  as  a  mortgage  deed 
of  land.  Any  instrument  will  answer  the  purpose,  which  would 
suffice  as  a  bill  of  sale  of  the  property,  and  which  contains,  in  addi- 


THE  PLEDGE  OF  PERSONAL  PBOPEETY.  551 

tion  to  the  words  of  sale  and  transfer,  a  clause  providing  for  the 
avoidance  of  it  when  the  debt  is  paid.  I  append  to  this  chapter 
forms  for  this  purpose. 

When  the  mortgagor  of  personal  property  retained  possession,  it 
was  formerly  doubtful  what  security  the  mortgagee  had.  Now,  how- 
ever, it  is  generally  provided  by  statute,  that  the  mortgagor  may 
retain  possession,  if  the  mortgage  be  recorded. 

These  instruments  should  always  be  recorded  according  to  the 
provisions  of  the  statute  of  the  State  in  which  they  are  made ; 
although  the  general  rule  would  apply  to  them,  that  they  would 
operate  without  record,  as  to  all  parties  having  notice  or  knowledge 
of  them. 

The  statutes  respecting  mortgages  of  personal  property  always 
provide  for  an  equity  of  redemption,  which  is  usually  very  much 
shorter  than  that  of  land.  A  frequent  period  is  sixty  days.  The 
requirements  of  the  statute  in  respect  to  notice,  foreclosure,  &c., 
must  be  strictly  followed. 

It  used  to  be  thought  that  a  personal  mortgage  might  be  made  to 
cover  property  subsequently  acquired  by  the  mortgagee.  Thus,  a 
dealer  in  dry  goods  would  mortgage  all  his  stock  to  secure  some 
creditor,  and  provide  in  the  mortgage  that  it  should  operate  upon 
all  his  goods  and  merchandise  subsequently  acquired  by  him.  But 
it  has  been  held  that  such  a  clause  has  no  effect;  because  no 
man  can  make  a  mortgage  of  property  which  he  does  not  own  at 
the  time. 

The  Pledge  of  Personal  Property. 

A  PLEDGEE  is  bound  to  take  ordinary  (not  extreme)  care  of  the 
thing  pledged ;  and  if  it  be  lost  or  injured  for  want  of  such  care, 
he  is  answerable. 

He  cannot  use  it,  except  at  his  own  peril ;  that  is,  he  is  liable 
for  any  injury  caused  by  using  it,  even  if  it  was  not  his  fault.  If 
the  thing  —  as  a  horse  —  needs  use  for  its  own  safety,  then  the 
pledgee  may  use  it  for  this  purpose,  and  is  liable  only  for  ao 
injury  caused  by  his  negligence. 

He  must  account  with  the  pledger  for  the  income,  increase,  or 
profits. 

X 


552          MORTGAGES  OF  PERSONAL  PROPERTY. 

One  difference  between  a  mortgagee  and  a  pledgee  is  this.  A 
mortgagee  need  not  take  possession,  for  the  mortgagor  may  retain 
it,  and  now  this  is  provided  for,  as  we  have  seen,  by  recording  the 
mortgage.  But  if  a  thing  is  given  in  pledge,  the  pledgee  must  have 
and  keep  possession  of  it. 

The  most  important  difference  is  this.  A  mortgagee  may  sell  and 
transfer  his  mortgage,  and  his  transferee  may  transfer  it  again,  and 
BO  on ;  and  when  the  debt  is  paid,  the  mortgagor  reclaims  it  from 
whomsoever  has  it  then.  But  if  a  pledgee  sells  the  pledge  before  the 
debt  is  due,  it  is  held  that  he  is  at  once  answerable  to  the  pledger 
for  its  full  value,  although  the  debt  be  not  paid. 

Some  cases  of  this  kind  have  been  carried  very  far  in  New  York. 
It  is  held  there,  —  and  on  grounds  which  may  perhaps  suffice  to 
make  it  law  everywhere,  —  that  if  A  lends  money  to  B,  and  takes 
stocks  in  pledge,  A  cannot  sell  these  stocks  and  keep  the  proceeds, 
and  replace  the  stock  and  return  it  when  the  debt  is  paid.  He  can 
do  nothing  but  keep  the  stock  ;  and  if  he  sells  it,  the  pledgor  may 
recover  at  once  its  full  value,  and  the  pledgee  will  have  no  security 
for  his  debt.  In  such  a  case,  a  pledgee,  being  sued,  offered  the  testi- 
mony of  brokers  and  others  to  prove  a  uniform  and  established 
usage  in  the  city  of  New  York  thus  to  sell  or  use  pledged  stcck 
until  the  debt  was  paid  ;  but  the  court  said  the  usage  was  illegal, 
and  refused  to  receive  the  evidence. 

It  is  certain  that  after  the  debt  is  due  and  payable,  and  after 
demand  if  it  be  payable  on  demand,  the  pledgee  may  have  a  decree 
in  chancery  for  a  sale  of  the  pledge,  or  may  sell  it  himself,  provided 
he  first  gives  a  reasonable  notice  to  the  pledgor,  and  then  sells  it, 
after  a  reasonable  delay,  in  a  proper  manner,  by  a  public  sale  at 
auction  ;  and  uses  all  reasonable  precautions  to  get  its  value,  as  by 
advertisement,  &c. ;  and  does  not  buy  it  himself,  directly  or  indi- 
rectly ;  and  conducts  himself  in  all  respects  honestly  ;  and  then  he 
must  account  for  the  proceeds. 

Sometimes  the  parties  agree,  when  the  pledge  is  given,  or  after- 
wards, how  the  pledge  shall  be  treated,  or  how  sold  if  not  redeemed, 
&c. ;  and  such  agreements,  if  fair  and  reasonable,  would  undoubt- 
edly be  binding  on  both  parties. 

It  'is  agreed  that  nogotiable  paper  is  excepted  from  the  common 


FORMS  OF  MORTGAGES  OF  PERSONAL  PROPERTY.    553 

rule ;  and  the  pledgee  of  that  may  sell  or  discount  it  before  the 
debt  is  due ;  and  must  account  for  it,  or  its  proceeds,  if  the  debt  is 
paid  and  the  paper  redeemed,  or  for  the  balance  if  he  applies  it  to 
payment  of  the  debt. 

A  loan  of  stock  is  not  like  a  pledge  of  stock,  because  it  authorizes 
the  borrower  to  sell  or  pledge  it,  or  use  it  in  any  way,  at  any  time ; 
but  he  must  replace  and  return  the  same  quantity  of  the  same  stock, 
when  it  is  called  for.  If  he  could  not  thus  make  use  of  the  stock, 
the  loan  of  it  would  be  of  no  benefit  whatever  to  the  borrower.  But 
he  cannot  thus  use  stock  pledged  to  him,  unless  by  a  special  agree- 
ment which  permits  this  use. 

A  pledgee,  who  receives  a  pledge  to  secure  one  or  more  specific 
debts,  cannot  retain  it  to  secure  other  and  further  debts  of  the 
pledger,  unless  with  his  consent.  This  consent  may  be  express,  or 
implied  from  words  or  circumstances  which  show  that  such  was  the 
understanding  of  the  parties. 

(181.) 
A  Mortgage  of  Personal  Property. 

Know  all  Men  by  these  Presents,  That  I,  (name  of  mortgagor) 

of  the  town  of  County  of  and  State  of 

for  and  in  consideration  of  dollars,  to  me  in  hand  paid  by 

(name  of  mortgagee)  of  the  town  of  County  of 

and  State  aforesaid,  do  sell  and  convey  to  the  said  (name  of  mortgagee)  the 

following  goods  and  chattels,  to  wit  (list  or  schedule  of  the  articles,  specifying  them 
with  sufficient  distinctness  to  make  it  certain  what  they  are)  warranted  free  of  incum- 
brance,  and  against  any  adverse  claims :  Upon  condition,  that  if  the  said 
(name  of  the  mortgagor)  pay  to  the  said  (name  of  the  mortgagee)  dollars  and 

interest,  in  year    ,  agreeably  to  a  promissory  note  of  this  date,  for  that  sum, 

payable  to  the  said  (name  of  mortgagee)  or  order,  on  demand,  with  interest, 

this  deed  shall  be  void,  otherwise  in  full  force  and  effect. 

The  aforesaid  Parties  Agree,  That,  until  the  condition  of  this  instrument 
is  broken,  the  said  property  may  remain  in  possession  of  the  said  (name  of 

mortgagor),  but  after  condition  broken  the  said  (name  of  mortgagee)  may  at 

his  pleasure  take  and  remove  the  same,  and  may  enter  into  any  building  o*  prem- 
ises of  the  said  (name  of  the  mortgagor)  for  that  purpose. 

Witness  our  hands  and  seals  thia  day  of  A.  D. 

18 

(Signature  of  mortgagor.)     (Seal.) 

(Signature  of  mortgagee.)     (Seal.) 
Sealed  and  Delivered  in  Presence  of 


554         MORTGAGES  OF  PERSONAL  PROPERTY. 


STATE  OF 

COUNTY  OF 
Be  it  Remembered,  That  on  this  day  of 


Vss. 


eighteen  hundred  and  before  me,  the  undersigned,  Notary  Public 

in  and  for  said  County  and  State,  duly  commissioned  and  qualified,  came 

who  is  known  to  me  to  be  the  same  person  whose  name  is  subscribed  to 
the  foregoing  instrument  of  writing,  as  party  thereto,  and  he  acknowledged  the 
same  to  be  his  act  and  deed,  for  the  purpose  therein  mentioned. 

In  Testimony  Whereof  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  at  office,  in  the  city  of  the  day  and  year  last  aforesaid. 

Notary  Public. 

(182.) 
A  Mortgage  of  Personal  Property,  with  Warranty. 

Know  all  Men  by  these  Presents,  That  I,  (name  and  residence  of 

mortgagor)  in  consideration  of  the  sum  of  to  me  in  hand  paid 

by  (name  and  residence  of  mortgagee')  the  receipt  whereof  is  hereby  acknowl- 

edged, have  granted,  bargained,  and  sold,  and  by  these  presents  do  grant,  bargain, 
and  sell,  unto  the  said  (name  of  mortgagee)  the  following  articles  of  personal 

property;  that  is  to  say  (list  or  schedule  as  in  Form  181) 

To  Have  and  to  Hold,  all  and  singular,  the  said  goods  and  chattels,  unto 
the  said  (name  of  the  mortgagee)  and  his  executors,  administrators,  and  assigns, 
to  his  and  their  use  forever.  And  I  the  said  mortgagor  for  myself  and  for  my 
executors  and  administrators  do  covenant  to  and  with  the  said  mortgagee  and  with 
his  executors,  administrators  and  assigns,  that  I  am  lawfully  possessed  of  the  said 
goods  and  chattels,  as  of  my  own  property ;  that  the  same  are  free  from  all  incum- 
brances,  and  that  I  will,  and  my  executors  and  administrators 

shall,  warrant  and  defend  the  same  to  the  said  mortgagee,  his  executors,  adminis- 
trators, and  assigns,  against  the  lawful  claims  and  demands  of  all  persons. 

Provided  Nevertheless,  That  if  the  said  mortgagor,  his  executors  or  admin- 
istrators, shall  well  and  truly  pay  unto  the  said  mortgagee,  his  executors,  adminis- 
trators, or  assigns,  the  sum  of  dollars,  in  months 
from  the  date  hereof  (or  on  a  certain  day,  staling  the  day  when  the  money  is  to  be 
paid)  with  interest  at  per  cent,  then  this  deed,  as  also  a  certain  promissory 
note  bearing  even  date  herewith,  signed  by  the  said  mortgagor, 
whereby  he  promises  to  pay  the  said  mortgagee  the  said  sum  and  interest  at  the 
tune  aforesaid,  shall  both  be  void ;  otherwise  shall  remain  in  full  force  and  virtue. 

And  Provided  Also,  That  until  default  by  the  said  mortgagor,  or  his  ex- 
ecutors and  administrators,  in  the  performance  of  the  condition  aforesaid,  or  of  some 
part  thereof,  it  shall  and  may  be  lawful  for  him  or  them  to  keep  possession  of  the 


FORMS  OF  MORTGAGES  OF  PERSONAL  PROPERTY.     555 

said  granted  property,  and  to  use  and  enjoy  the  same ;  but  in  case  of  such  default, 
or  if  the  same  or  any  part  thereof  shall  be  attached,  at  any  time  before  payment  aa 
aforesaid,  by  any  other  creditor  or  creditors  of  the  said  mortgagor,  or  if  the  said 
mortgagor  or  his  executors  or  administrators,  shall  attempt  to  sell  the  same,  or  any 
part  thereof,  without  notice  to  the  said  mortgagee  or  his  executors,  administrators, 
or  assigns,  and  without  his  or  their  assent  to  such  sale  in  writing  expressed,  or  shall 
remove  the  same,  or  any  part  thereof,  from  the  place  in  which  they  now  are,  with- 
out such  notice  and  assent,  then  it  shall  be  lawful  for  the  said  mortgagee  or  his 
executors,  administrators,  or  assigns,  to  take  immediate  possession  of  the  whole  of 
said  granted  property,  to  his  and  their  own  use. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 
day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  sixty- 

(Signatwre)     (Seal) 

Executed  and  Delivered  in  Presence  of 


(183.) 
A  Mortgage  of  Personal  Property,  with  a  Power  of  Sale. 

Know  all  Men  by  these  Presents,  That  I,  (name  of  mortgagor)  of 
the  town  (or  city)  of  in  the  County  of  and  State 

of  ,  in  consideration  of  dollars,  to  me  paid 

by  (name  of  mortgagee)  of  the  town  (or  city)  of  in  the 

County  of  and  State  of  the  receipt  whereof 

is  hereby  acknowledged,  do  hereby  grant,  bargain  and  sell  unto  the  said  (name 
of  mortgagee)  and  his  assigns,  forever,  the  following  goods  and  chattels,  to  wit  (list 
or  schedule,  as  in  Form  181) 

To  Have  and  to  Hold,  All  and  singular  the  said  goods  and  chattels  unto 
the  mortgagee  herein,  and  his  assigns,  to  their  sole  use  and  behoof  forever.  And 
the  mortgagor  herein,  for  himself  and  for  his  heirs,  executors  and  administrators, 
does  hereby  covenant  to  and  with  the  said  mortgagee  and  his  assigns,  that  said 
mortgagor  is  lawfully  possessed  of  the  said  goods  and  chattels,  as  of  his  own 
property ;  that  the  same  are  free  from  all  incumbrances,  and  that  he  will  warrant 
and  defend  the  same  to  him  the  said  mortgagee  and  his  assigns,  against  the  lawful 
claims  and  demands  of  all  persons. 

Provided,  Nevertheless,  that  if  the  said  mortgagor  shall  pay  to  the  mortgagee, 
on  the  day  of  in  the  year 

the  sum  of  dollars,  then  this  mortgage  is  to  be  void,  otherwise 

to  remain  in  full  force  and  effect. 

And  Provided  Further,  That  until  default  be  made  by  the  said  mortgagor 
in  the  performance  of  the  condition  aforesaid,  it  shall  and  may  be  lawful  for  him 
to  retain  the  possession  of  the  said  goods  and  chattels,  and  to  use  and  enjoy  the 
37 


556  MOETGAGES  OF  PEESOXAL  PEOPEETY. 

same ;  but  if  the  same  or  any  part  thereof  shall  be  attached  or  claimed  by  any 
other  person  or  persons  at  any  time  before  payment,  or  the  said  mortgagor  or  any 
person  or  persons  whatever,  upon  any  pretence,  shall  attempt  to  carry  off,  conceal, 
make  way  with,  sell,  or  hi  any  manner  dispose  of  the  same  or  any  part  thereof, 
•without  the  authority  and  permission  of  the  said  mortgagee  or  his  executors, 
administrators  or  assigns,  in  writing  expressed,  then  it  shall  and  may  be  lawful  for 
the  said  mortgagee  with  or  without  assistance,  or  his  agent  or  attorney,  or  his 
executors,  administrators,  or  assigns,  to  take  possession  of  said  goods  and  chattels,  by 
entering  upon  any  premises  wherever  the  same  may  be,  whether  in  this  county  or 
State,  or  elsewhere,  to  and  for  the  use  of  said  mortgagee  or  his  assigns.  And  if  the 
moneys  hereby  secured,  or  the  matters  to  be  done  or  performed,  as  above  specified, 
are  not  duly  paid,  done  or  performed  at  the  time  and  according  to  the  conditions 
above  set  forth,  then  the  said  mortgagee  or  his  attorney,  or  agent,  or  his  ex- 
ecutors, administrators  or  assigns,  may,  by  virtue  hereof,  and  without  any  suit  or 
process,  immediately  enter  and  take  possession  of  said  goods  and  chattels,  and  sell 
and  dispose  of  the  same  at  public  or  private  sale,  and  after  satisfying  the  amount 
due,  and  all  expenses,  the  surplus,  if  any  remain,  shall  be  paid  over  to  said  mort- 
gagor or  his  assigns.  The  exhibition  of  this  mortgage  shall  be  sufficient  proof 
that  any  person  claiming  to  act  for  the  mortgagee  is  duly  made,  constituted  and 
appointed  agent  and  attorney  to  do  whatever  is  above  authorized. 

In  Witness  AVliereof,  The  said  mortgagor  has  hereunto  set  his  hand  and 
seal  this  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

(Signature  of  mortgagor.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 


STATE  OF 

ss. 
COUNTY 


;l 


This  mortgage  was  acknowledged  before  me,  by  (the 

mortgagor),  this  day  of  AJD.  18 

(184.) 

Mortgage  of  Personal  Property,  with  Power  of  Sale:  another 

Form. 

Know  all  Men  by  these  Presents,  That  I  (name  and  residence 

of  mortgagor)  in  consideration  of  the  sum  of  to  me  paid  by 

(name  and  residence  of  mortgagee)  the  receipt  whereof  is  hereby  acknowledged 
have  granted,  bargained,  and  sold,  and  by  these  presents  do  grant,  bargain,  and 
sell  unto  the  said  (name  of  mortgagee)  the  following  named  tnd  described 

articles  of  personal  property;  that  is  to  say  (here  follows  the  list  or  schedule  and 
description  of  the  articles  mortgaged,  as  in  Form  181) 


FORMS   OF  MORTGAGES  OF  PERSONAL  PROPERTY.          557 

To  Have  and  to  Hold  All  and  singular,  the  said  goods  and  chattels,  unto 
the  said  (name  of  mortgagee)  and  his  executors,  administrators,  and  assigns, 

to  his  and  their  sole  use  forever.  And  I,  the  said  mortgagor,  for  myself  and  my 
executors  and  administrators,  do  covenant  to  and  with  the  said  mortgagee  and  his 
executors,  administrators,  and  assigns,  that  I  am  lawfully  possessed  of  the  said 
goods  and  chattels,  as  of  my  own  property :  that  the  same  are  free  from  all  incum- 
brances  ;  and  that  I  will,  and  my  executors  and  administrators  shall,  warrant  and 
defend  the  same  to  the  said  mortgagee  and  his  executors,  administrators,  and  as- 
signs, against  the  lawful  claims  and  demands  of  all  persons. 

Provided  Nevertheless,  That  if  the  said  mortgagor  or  his  executors,  or 
administrators,  shall  well  and  truly  pay  unto  the  said  mortgagee  or  his  executors, 
administrators  or  assigns,  the  sum  of  then  this  deed,  as  also  a 

certain  promissory  note  bearing  even  date  herewith,  signed  by  the  said  mortgagor, 
whereby  he  promises  to  pay  the  said  mortgagee  the  said  sum  and  interest  at  the 
time  aforesaid,  shall  both  be  void,  and  otherwise  they  shall  remain  in  full  force  and 
virtue. 

And  Provided  Also,  That  until  default  by  the  said  mortgagor  or  his  execu- 
tors and  administrators,  in  the  performance  of  the  condition  aforesaid,  or  of  some 
part  thereof,  it  shall  and  may  be  lawful  for  him  or  them  to  keep  possession  of  the 
said  granted  property,  and  to  use  and  enjoy  the  same ;  but  in  case  of  such  default, 
or  if  the  same  or  any  part  thereof  shall  be  attached  at  any  time  before  payment  as 
aforesaid,  by  any  other  creditor  or  creditors  of  the  said  mortgagor,  or  if  the  said 
mortgagor,  his  executors  or  administrators,  shall  attempt  to  sell  the  same  or  any 
part  thereof  without  notice  to  the  said  mortgagee  or  his  executors,  administrators,  or 
assigns,  and  without  his  or  their  assent  to  such  sale  in  writing  expressed ;  or  shall 
remove  the  same,  or  any  part  thereof,  from  the  place  where  they  now  are,  without 
such  notice  and  assent,  then  it  shall  be  lawful  for  the  said  mortgagee,  his  executors, 
administrators,  or  assigns,  to  take  immediate  possession  of  the  whole  of  said  granted 
property  to  his  or  their  own  use,  and  to  sell  and  dispose  of  the  whole,  or  of  so 
much  of  said  granted  property  at  public  auction,  as  shall  produce  a  sum  of  money 
eufficient  to  pay  and  discharge  the  above-mentioned  debt  or  liability,  with  interest, 
and  all  costs  and  charges  of  keeping  and  selling  the  same,  and  all  just  and  equitable 
liens  then  existing  thereon,  without  further  notice  or  demand,  except  giving 
days'  notice  of  the  time  and  place  of  said  sale  to  said  mortgagor  or  his  legal  repre- 
sentatives ;  and  after  the  said  debt  or  liability,  with  interest,  costs,  charges,  and 
liens,  shall  be  so  discharged  and  satisfied,  the  surplus  of  the  money  arising  from 
said  sale,  and  the  residue  of  said  granted  property,  shall  be  paid  and  restored  to 
eaid  mortgagor  or  hLi  legal  representatives,  discharged  from  all  claim  under  this 
mortgage. 

In  Testimony  Whereof  I,  the  said  (name  of  mortgagor) 

have  hereunto  set  my  hand  and  seal  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal.) 

Executed  and  Delivered  in  Presence  of 


558  THE  LAW  OP  PATENTS. 

CHAPTER    XXXIH. 

THE     DLi^W     OF     I»  A.  TENTS. 


"What  may  be  patented. 

ANY  new  and  useful  art,  machine,  manufacture,  or  composition  of 
matter,  or  any  new  and  useful  improvement  thereof  not  before 
known  or  used  by  others  in  this  country,  and  not  at  the  time 
patented  or  described  in  any  printed  publication  in  this  or  any  for- 
eign country. 

And  any  new  and  original  design  for  a  manufacture,  bust,  statue, 
alto  relievo,  or  bass  relief,  or  any  new  and  original  impression,  orna- 
ment, pattern,  print,  or  picture  to  be  placed  on  or  worked  into  any 
article  of  manufacture  ;  or  any  new  and  original  shape  or  configura- 
tion of  any  such  article,  the  same  not  having  been  known  or  used 
by  others  before  the  application  for  a  patent. 

"Wlio  is  entitled  to  a  Patent. 

Any  person,  whether  citizen  or  alien,  may  obtain  a  patent  for  any 
invention  or  improvement  made  by  him,  and  not  before  known. 

In  case  of  the  death  of  the  inventor,  the  patent  may  be  applied 
for  by,  and  will  issue  to,  his  legal  representatives. 

Joint  inventors  are  entitled  to  a  joint  patent ;  but  neither  can 
claim  one  separately. 

"What  will  prevent  the  granting  of  a  Patent, 

Although  an  applicant  may  have  actually  made  an  invention,  a 
patent  therefor  will  not  be  granted  him  if  the  whole  or  any  part  of 
what  he  claims  as  new  has  been  patented,  or  described  in  any  print- 
ed publication  in  this  or  any  foreign  country,  or  been  before  invented 
or  discovered  in  this  country,  nor  if  he  has  once  abandoned  his  in 


FORM  OF  PETITION".  559 

vention  to  the  public,  nor  if  it  has  been  for  more  than  two  years 
in  public  use  or  on  sale  ;  but  the  mere  fact  of  prior  use,  invention, 
or  discovery  abroad,  will  not  prevent  the  issue  of  the  patent,  unless 
the  invention  has  been  there  patented,  or  described  in  some  printed 
publication. 

Merely  conceiving  the  idea  of  an  improvement  or  machine  is  not 
such  an  "  invention "  or  "  discovery "  as  is  above  contemplated. 
The  invention  must  have  been  reduced  to  "a  practical  form,  either 
by  the  construction  of  the  machine  itself  or  of  a  model  thereof,  or  at 
least  by  making  a  full  drawing  of  it,  or  in  some  other  manner  equal- 
ly descriptive  of  its  exact  character,  so  that  a  mechanic  would  be 
enabled,  from  the  description  given,  to  construct  a  model  thereof, 
before  it  will  prevent  a  subsequent  inventor  from  obtaining  a  patent. 

Mode  of  proceeding  to  obtain  a  Patent. 
APPLICATION. 

All  applications  must  be  completed  for  examination  within  two 
years  after  the  filing  of  the  petition ;  and  in  default,  all  such  will  be 
regarded  as  abandoned,  unless  it  be  satisfactorily  proved  to  the  office 
that  such  delay  was  unavoidable.  The  application  must  be  made  by 
the  actual  inventor,  if  alive,  even  if  the  patent  is  to  issue  to  an 
assignee  ;  but,  where  the  inventor  is  dead,  the  application  and  oath 
may  be  made  by  the  executor  or  administrator.  The  application 
must  be  in  writing,  in  the  English  language,  signed  by  the  appli- 
cant, and  addressed  to  the  Commissioner  of  Patents,  "Washington, 
D.C.  The  following  is  a  suitable  form,  which  may  serve  as  a  use- 
ful guide,  but  must  be  varied  according  to  circumstances :  — 


(185.) 
Form  of  Petition. 

To  THE  COMMISSIONER  OF  PATENTS  :  — 
lour  petitioner  prays  that  a  patent  may  be  granted  to  him  for  the  invention  set 

forth  iii  the  annexed  specification. 

(Signature.) 


560  THE  LAW  OF  PATENTS. 


SPECIFICATION. 

The  applicant  must  set  forth  in  his  specification  the  precise  inven- 
tion for  which  he  claims  a  patent. 

In  all  applications  for  mere  improvements,  the  specification  must 
distinguish  between  what  is  admitted  to  be  old  and  what  is  described 
and  claimed  to  be  the  improvement ;  so  that  the  office  and  the  public 
may  understand  exactly  for  what  the  patent  is  granted. 

Two  or  more  distinct  and  separate  inventions  may  not  be  claimed 
in  one  application ;  but  where  several  inventions  have  a  necessary 
and  dependent  connection  with  each  other,  so  that  all  co-operate  in 
attaining  the  end  which  is  sought,  they  may  be  so  claimed.  If  moro 
than  one  invention  is  claimed  in  a  single  application,  and  they  are 
found  to  be  such  that  a  single  patent  may  not  be  issued  to  cover  the 
whole,  the  inventor  must  divide  the  application  into  separate  appli- 
cations, or  confine  the  claim  to  whichever  invention  he  may  elect. 

The  specification  must  be  signed  by  the  inventor  (or  by  his  execu- 
tor or  administrator,  if  the  inventor  be  dead).  It  should  describe 
the  sections  of  the  drawings  (where  there  are  drawings),  and  refer 
by  letters  and  figures  to  the  different  parts.  The  following  may  be 
taken  as  a  specimen  of  the  proper  form  of  a  specification  to  accom- 
pany the  petition :  — 

(186.) 
Form  of  a  Specification  to  accompany  the  Petition. 

TO  ALL  WHOM  IT  MAY  CONCERN  :  — 

Be  it  known  that  I,  of  in  the  County  of 

in  the  State  of  have  invented  a  new  and 

improved  mode  of  preventing  steam-boilers  from  bursting ;  and  I  do  hereby  declare 

that  the  following  is  a  full  and  exact  description  thereof,  reference  being  had  to 

the  accompanying  drawings,  and  to  the  letters  of  reference  marked  thereon. 

The  nature  of  my  invention  consists  in  providing  the  upper  part  of  a  steam- 
boiler  with  an  aperture  in  addition  to  that  for  the  safety-valve,  which  aperture  is 
to  be  closed  by  a  plug  or  disk  of  alloy,  which  will  fuse  at  any  given  degree  of  heat, 
and  permit  the  steam  to  escape,  should  the  safety-valve  fail  to  perform  its  functions. 

To  enable  others  skilled  in  the  art  to  make  and  use  my  invention,  I  will  proceed 
to  describe  its  construction  and  operation.  I  construct  my  steam-boiler  in  any  of 


FORM  OF  SPECIFICATION.  561 

the  known  forms,  and  apply  thereto  gauge-cocks,  a  safety-valve,  and  the  other 
appendages  of  such  boilers ;  but,  in  order  to  obviate  the  danger  arising  from  the 
adhesion  of  the  safety-valve,  and  from  other  causes,  I  make  a  second  opening  in 
the  top  of  the  boiler,  similar  to  that  made  for  the  safety-valve,  as  shown  at  A,  in  the 
accompanying  drawing ;  and  in  this  opening  I  insert  a  plug  or  disk  of  fusible  alloy, 
securing  it  in  its  place  by  a  metal  ring  and  screws,  or  otherwise.  In  general,  I 
compose  this  fusible  metal  of  a  mixture  of  lead,  tin,  and  bismuth,  in  such  propor- 
tions as  will  insure  its  melting  at  a  given  temperature,  which  must  be  that  to  which 
it  is  intended  to  limit  the  steam;  it  will,  of  course,  vary  with  the  pressure  the  boiler 
is  intended  to  sustain. 

I  surround  the  opening  containing  the  fusible  alloy  by  a  tube,  B,  intended  to 
conduct  off  any  steam  which  may  be  discharged  therefrom.  When  the  tempera- 
ture of  the  steam  in  such  a  boiler  rises  to  its  assigned  limit,  the  fusible  alloy  will 
melt  and  allow  the  steam  to  escape  freely,  thereby  securing  it  from  all  danger  of 
explosion. 

What  I  claim  as  my  invention,  and  desire  to  secure  by  letters  patent,  is  the 
application  to  steam-boilers  of  a  fusible  alloy  which  will  melt  at  a  given  tempera- 
ture and  allow  the  steam  to  escape,  as  herein  described,  using  for  that  purpose  the 
aforesaid  metallic  compound,  or  any  other  substantially  the  same,  and  which  will 

produce  the  intended  effect. 

(Signature.) 

(Witnesses.) 

When  the  application  is  for  a  machine,  the  specification  should 
begin  thus  :  — 

Be  it  known  that  I,  (name  of  inventor)  in  the  County  of 

and  State  of  have  invented  a  new  and  useful  machine  for 

[stating  the  use  and  title  of  the  machine;  and,  if  the  application  is  for  an  improve- 
ment, it  should  read  thus :  a  new  and  useful  improvement  on  a  or  on  the  machine, 
&c.]  and  I  do  hereby  declare  that  the  following  is  a  full,  clear,  and  exact  descrip- 
tion of  the  construction  and  operation  of  the  same,  reference  being  had  to  the 
annexed  drawings,  making  a  part  of  this  specification,  in  which  Figure  1  is  a  per- 
spective view ;  Figure  2  a  longitudinal  elevation ;  Figure  3  a  transverse  section,  &c. 
(thus  describing  all  the  sections  of  the  drawings,  and  then  referring  to  the  parts  by 
letters.  Then°  follows  the  description  of  the  construction  and  operation  of  the 
machine,  and  lastly  the  claim,  which  should  express  the  nature  and  character  of 
the  invention,  and  identify  the  parts  claimed  separately  or  in  combination.  If  the 
specification  is  for  an  improvement,  the  original  invention  should  be  sclaimed, 
and  the  claim  confined  to  the  improvement). 

The  specification  must  be  signed  by  the  inventor,  and  attested  by 
two  witnesses. 


562  THE  LAW  OP  PATENTS. 

The  applicant  must  make  oatli  or  affirmation,  to  be  substantially 
as  follows :  — 

(187.) 

- 
Form  of  Oath. 

CITY  (OR  Towx)  OP  COU>*TY  OF  } 

•    [-88. 

STATE  OF  ) 

On  this  day  of  186       ,  before  me,  the  subscriber 

a  personally  appeared  the  within  named 

and  made  solemn  oath  (or  affirmation)  that  he  verily  believes  himself  to  be  the 
original  and  first  inventor  of  the  mode  herein  described  for  preventing  steam- 
boilers  from,  bursting,  and  that  he  does  not  know  or  believe  the  same  was  ever 
before  known  or  used ;  and  that  he  is  a  citizen  of  the  United  States  [or  citizen  of 
other  country,  as  the  case  may  be]. 

(Signature.)        Justice  of  the  Peace, 

.  Citizens  of  the  British  Provinces  should  state  specifically  the 
provinces  of  which  they  are  citizens,  and  not  merely  that  they  are 
subjects  of  the  crown  of  Great  Britain.  The  oath  may  be  taken 
before  any  person  authorized  by  law  to  administer  oaths.  The  oath 
may  be  taken  in  a  foreign  country  before  any  minister  plenipoten- 
tiary, charg6  d'affaires,  consul,  or  commercial  agent,  holding  com- 
mission under  the  government  of  the  United  States,  or  before  any 
notary  public  of  the  country  in  which  the  oath  is  taken,  being  at- 
tested in  all  cases  by  the  proper  official  seal  of  such  notary.  Appli- 
cants for  patents,  upon  paying  the  final  fee,  should  notify  the  office 
how  many  copies  of  the  specifications  they  desire  to  have  furnished 
them. 

DRAWINGS. 

The  applicant  for  a  patent  is  required  by  law  to  furnish  a  draw- 
ing, or  drawings,  where  the  nature  of  the  case  admits  of  them.  They 
should  be  neatly  and  artistically  executed,  in  fast  colors,  generally 
in  perspective,  and  with  such  detached  sectional  and  plain  views  as 
to  clearly  show  what  the  invention  is,  its  construction  and  operation. 
Each  part  must  be  distinguished  by  the  same  number  or  letter 
wherever  it  appears  in  the  several  drawings.  The  name  of  the 


THE  MODEL.  563 

invention  should  be  written  at  the  top,  the  shortest  side  being  con- 
sidered as  such.  Each  sheet  should  be  fifteen  inches  from  top  to 
bottom,  and  ten  inches  across,  that  being  the  size  of  the  patent ;  or 
it  may  be  twenty  inches  across,  so  as  to  be  folded.  One  of  the 
drawings  should  be  on  thick  drawing-paper,  sufficiently  stiff  to  sup- 
port itself  in  the  portfolios  of  the  office,  for  which  it  is  intended. 
Tracings  upon  cloth  pasted  on  thick  paper  are  not  admitted.  This 
must  be  signed  by  the  applicant,  and  attested  by  two  witnesses,  and 
must  be  sent  with  the  specification.  The  other  duplicate  need  not 
be  forwarded  until  the  patent  is  ordered  to  issue,  to  which  it  is  to 
be  attached.  It  must  have,  for  that  purpose,  a  margin  of  one  inch 
on  the  right  hand,  and  should  be  on  tracing-muslin,  which  will  bear 
folding  and  transportation,  and  not  on  paper. 

The  above  are  the  rules  imposed  by  the  office,  being  found  neces- 
sary for  the  convenient  transaction  of  their  business.  And  appli- 
cants are  advised  to  employ  competent  artists  to  make  the  drawings, 
as  they  will  be  returned  if  not  executed  in  conformity  with  these 
rules.  Thick  drawings  should  never  be  folded  for  transmission. 


MODEL. 


A  model  is  required  in  every  case  where  the  nature  of  the  inven- 
tion admits  of  such  illustration.  It  must  be  neatly  and  substantially 
made  of  durable  material,  and  not  more  than  one  foot  in  length  or 
in  height.  If  made  of  pine  or  other  soft  wood,  it  should  be  painted, 
stained,  or  varnished.  Models  filed  as  exhibits,  in  interference  and 
other  cases,  may  be  returned  to  the  applicant,  at  the  discretion  of 
the  commissioner. 

A  working  model  is  always  desirable,  in  order  to  enable  the  office 
fully  and  readily  to  understand  the  precise  operation  of  the  machine. 
The  name  of  the  inventor,  and  also  of  the  assignee  (if  assigned), 
and  also  the  title  of  the  invention,  must  be  affixed  upon  it  in  a  per 
manent  manner. 

When  the  invention  is  a  composition  of  matter,  a  specimen  of 
each  of  the  ingredients  and  of  the  composition  must  accompany  the 
application,  and  the  name  of  the  inventor  and  of  the  assignee  (if 
there  be  one)  must  be  permanently  affixed  thereto. 


564  THE  LAW  OP  PATENTS. 

When  a  work  of  design  can  be  sufficiently  represented  by  a  draw- 
ing, in  the  judgment  of  the  commissioner,  a  model  will  not  be  re- 
quired by  him. 

If  photographs  are  used  by  the  applicant  for  the  illustration  of 
works  of  design,  they  should  be  pasted  upon  thick  drawing-paper, 
or  thin  Bristol-board,  of  the  size  prescribed  for  drawings  ;  but,  in 
every  case  where  this  mode  of  illustration  is  employed  by  an  appli- 
cant, he  will  do  well  to  deposit  in  the  office  the  glass  or  other 
"  negative  "  from  which  the  photograph  is  printed,  so  that  exact 
official  copies  may  be  made  therefrom  when  desirable. 

COMPLETION    OF    THE    APPLICATION. 

No  application  is  examined,  nor  is  the  case  placed  upon  the  files 
for  examination,  until  the  fee  is  paid,  the  model  or  specimen  depos- 
ited, and  the  specification,  with  the  petition,  oath,  and  drawings 
(when  required),  filed.  It  is  desirable  that  every  thing  necessary  to 
make  the  application  complete  should  be  deposited  in  the  office  at 
the  same  time. 

Of  the  Examination. 

All  cases  in  the  Patent  Office  are  arranged  in  classes,  which  aie 
taken  up  for  examination  in  regular  rotation ;  those  in  the  same 
class  being  examined  and  disposed  of,  as  far  as  practicable,  in  the 
order  in  which  the  respective  applications  are  completed.  When, 
however,  the  invention  is  deemed  of  peculiar  importance  to  some 
branch  of  the  piiblic  service,  and  when,  for  that  reason,  the  head  of 
some  department  of  the  government  specially  requests  immediate 
action,  the  case  will  be  taken  up  out  of  its  order.  These,  with  appli- 
cations for  re-issue,  and  for  inventions  for  which  a  foreign  patent 
has  been  issued,  are  the  only  exceptions  to  the  "rule  above  stated  in 
relation  to  the  order  of  examination. 

When  an  application  has  been  once  rejected,  either  in  whole  or  in 
part,  and  the  applicant  desires  a  second  examination,  either  with  or 
without  amendment,  he  will  be  entitled  to  it  with  as  little  delay  as 
may  be  practicable,  so  that  he  may  be  in  condition  to  appeal,  if 
desirable,  without  loss  of  time.  When  an  application  has  been 
finally  decided,  the  office  will  retain  the  original  papers,  furnishing 
the  applicant  copies  —  if  he  desires  them  —  at  the  usual  expense. 


APPEALS.  565 

When  a  patent  is  granted,  it  will  be  transmitted  to  the  patentee,  or 
to  his  agent,  having  a  full  power  of  attorney  authorizing  him  to 
receive  it. 

Protests. 

The  office  cannot  stay  the  regular  proceedings  on  applications  for 
letters-patent  in  consequence  of  protests  founded  upon  mere  exparte 
statements ;  but,  where  affidavits  of  disinterested  persons  are  received, 
they  will  be  considered  and  allowed  such  weight  as  they  may  seem 
entitled  to. 

"Withdrawals. 

Although  an  application  be  rejected,  no  money  paid  thereon,  nor 
for  a  design,  nor  for  a  re-issue,  can  be  withdrawn  from  the  patent 
office  by  the  applicant. 

Stamps. 

Revenue  stamps  must  be  attached  as  follows :  — 

First,  A  stamp  of  the  value  of  fifty  cents  is  required  upon  each 
power  of  attorney  authorizing  an  attorney  or  agent  to  transact  busi- 
ness with  this  office  relative  to  an  application  for  a  patent,  re-issue, 
or  extension. 

Second,  No  assignment  directing  a  patent  to  issue  to  an  assignee 
will  be  recognized  by  this  office,  nor  will  any  assignment  be  recorded, 
unless  stamps  shall  be  affixed  of  the  value  of  five  cents  for  every 
sheet  or  piece  of  paper  upon  which  the  same  shall  be  written. 

Third,  The  person  using  or  affixing  the  stamp  must  cancel  the 
same  by  writing  thereupon  the  initials  of  his  name  and  the  date. 

Appeals. 

After  an  application  for  a  patent  has  been  twice  rejected  by  the 
examiner  having  it  in  charge,  it  may,  at  the  option  of  the  applicant, 
be  brought  before  the  board  of  examiners-in-chief,  on  payment  of  a 
fee  of  ten  dollars. 

For  this  purpose,  a  petition  in  writing  must  be  filed,  signed  by  the 
party  or  his  authorized  agent  or  attorney. 


566  THE  LAW  OF  PATENTS. 

(188.) 
Form  of  Appeal  to  the  Examiners-in-CMef. 

To  THE  COMMISSIONER  OF  PATENTS. 

SIR,  —  I  hereby  appeal  to  the  examiners-in-chief  from  the  decision  of  the  prin- 
cipal examiner  in  the  matter  of  my  application  for  a  patent  for  an  improvement  in 

(here  state  the  subject  of  the  invention)  rejected  a  second  time  on 
day  of 

Respectfully, 

(Signature.) 

The  examiners-in-chief  will  consider  the  case  as  it  was  when  last 
passed  upon  by  the  primary  examiner,  merely  revising  his  decisions 
so  far  as  they  were  adverse  to  the  applicant. 

All  cases  which  have  been  acted  on  by  the  board  of  examiners-in- 
chief  may  be  brought  before  the  commissioner  in  person,  upon  a 
written  request  to  that  effect,  and  upon  the  payment  of  the  fee  of 
twenty  dollars  required  by  law.  A  decision  deliberately  made  and 
approved  by  one  commissioner  will  not  be  disturbed  by  his  successor. 
The  only  remaining  remedy  will  be  by  appeal  in  those  cases  allowed 
by  law  to  the  judges  of  the  Supreme  Court  of  the  District  of  Colum- 
bia. 

The  mode  of  appeal  from  the  decision  of  the  office  to  the  judges 
of  the  Supreme  Court  of  the  District  of  Columbia  is  by  giving 
written  notice  thereof  to  the  commissioner,  filing  in  the  patent 
office,  within  thirty  days  after  notice  of  the  decision,  reasons  of  ap- 
peal, and  paying  to  him  the  sum  of  twenty-five  dollars.  Printed 
forms  of  notice  of  appeal,  of  the  reasons  of  appeal,  and  of  the  pe- 
tition, will  be  forwarded  from  the  patent  office  to  any  one  wishing  to 
make  an  appeal,  on  his  request.  The  following  rules  were  adopted 
by  the  Supreme  Court  in  appeals  from  the  decisions  of  the  Com- 
missioner of  Patents,  and  they  are  given  here  as  they  may  be  useful 
guides  to  the  applicant  or  his  counsel. 

The  party  desiring  to  appeal  from  the  decision  of  the  Commis- 
sioner of  Patents  must  give  written  notice  thereof  to  the  com- 
missioner, accompanied  with  his  petition  to  the  Supreme  Court  of 
the  District  of  Columbia  to  grant  him  a  hearing,  and  file  the  reasons 
of  appeal,  and  pay  the  fee  of  twenty-five  dollars. 


APPEALS.  567 

The  appellant,  previous  to  any  action  on,  and  preparatory  to  the 
hearing  of  any  appeal,  must  comply  with  the  requisites  of  the  law 
in  the  patent  office,  and  his  petition  must  state  concisely  — 

1.  The  application  for  the  patent ; 

2.  Its  nature,  and,  if  a  case  of  interference, 

3.  The  residence  of  the  party  interested ; 

4.  The  commissioner's  refusal ; 

5.  The  prayer  of  appeal ; 

6.  Notice  thereof  to  the  commissioner ; 

7.  The  filing  of  the  reasons  of  appeal  in  the  patent  office ;  and, 

8.  The  payment  into  the  office  of  the  sum  required  by  law. 

To  every  petition  must  be  annexed  a  certificate  of  the  proper 
officer  that  the  requisitions  of  the  law  have  been  complied  with,  or 
an  affidavit  of  the  truth  of  the  facts  stated  in  the  petition. 

No  notice  to  the  commissioner  will  be  issued  until  such  certificate 
or  affidavit  be  made  or  produced. 

The  appeal  will  be  tried  upon  the  evidence  which  was  in  the  case 
and  produced  before  the  commissioner. 

The  appellant  must  file  his  argument,  in  writing,  within  five  days 
after  the  commissioner  shall  send  in  his  report,  and  the  papers, 
models,  and  drawings  or  specimens,  or  within  five  days  after  the  day 
of  hearing,  which  argument  must  state  the  facts  and  law  relied  on, 
together  with  the  authorities  in  support  of  the  same. 

In  contested  cases  the  appellee  shall  file  his  argument,  in  writing, 
within  ten  days  after  the  appellant  shall  have  filed  his  argument. 
At  the  hearing,  oral  arguments  may  be  made,  not  to  occupy  more  than 
one  hour  for  each  counsel  engaged,  and  not  more  than  two  counsel 
in  each  case  will  in  any  case  be  heard,  and  in  no  case  will  oral  argu- 
ment be  heard  unless  the  opposite  party  shall  have  reasonable  notice 
thereof,  through  the  mail  or  otherwise,  from  the  party  desiring  to 
be  heard  orally  ;  or  where  oral  arguments  are  ordered  by  the  court, 
the  appellant  shall  give  the  notice. 

The  court,  having  fully  heard  the  appeal,  shall  return  all  the 
papers  to  the  commissioner,  with  a  certificate  of  its  proceedings  and 
decisions,  which  shall  be  entered  of  record  in  the  patent  office, 
and  such  decision,  so  certified,  shall  govern  the  further  proceedings 
of  the  commissioner  in  such  case. 


568  THE  LAW  OF  PATENTS. 

Interferences. 

When  each  of  two  or  more  persons  claims  to  be  the  first  in- 
ventor of  the  same  thing,  an  "  interference  "  is  declared  between 
them,  and  a  trial  is  had  before  the  examiner.  Nor  does  the  fact 
that  one  of  the  parties  has  already  obtained  a  patent  prevent  such 
an  interference ;  for,  although  the  commissioner  has  no  power  to 
cancel  a  patent  already  issued,  he  may,  if  he  finds  that  another  per- 
son was  the  prior  inventor,  give  him  also  a  patent,  and  thus  place 
them  on  an  equal  footing  before  the  courts  and  the  public.  If  an 
applicant  for  a  re-issue  embraces  in  his  amended  specification  any 
new  or  additional  description  of  his  invention,  or  enlarges  his  claim, 
or  makes  a  new  one,  and  thereby  includes  therein  any  thing  which 
has  been  claimed  in  any  patent  granted  subsequent  to  the  date  of 
his  original  application,  as  the  invention  of  another  person,  an  inter- 
ference will  be  declared  between  the  application  and  any  unexpired 
patent,  or  pending  application,  in  which  the  same  thing  is  claimed  ; 
but  not  where  such  pending  application  for  re-issue  claims  only  what 
was  granted  in  the  original  patent. 

When  an  application  is  found  to  conflict  with  a  caveat,  the  cav- 
eator  is  allowed  a  period  of  three  months  within  which  to  present  an 
application,  when  an  interference  may  be  declared.  In  cases  of  in- 
terference, patentees  have  the  same  remedies  by  appeal  as  applicants 
in  pending  applications.  In  contested  cases,  whether  of  interfer- 
ence or  of  extension,  parties  may  have  access  to  the  testimony  on 
file,  prior  to  the  hearing,  in  presence  of  the  officer  in  charge ;  or, 
when  practicable,  copies  may  be  obtained  by  them  at  the  usual 
charges. 

In  cases  of  interference,  the  party  who  first  made  oath  to  the  inven- 
tion will  be  deemed  the  first  inventor  in  the  absence  of  all  proof  to 
the  contrary.  A  time  will  be  assigned  in  which  the  other  party  shall 
complete  his  direct  testimony,  and  a  further  time  in  which  the 
adverse  party  shall  complete  the  testimony  on  his  side ;  and  a  still 
further  time  in  which  the  first  party  shall  close  his  rebutting  testi- 
mony, but  shall  take  no  other.  If  there  are  more  than  two  parties, 
the  times  for  taking  testimony  shall  be  so  arranged  that  each  shall 
have  a  like  opportunity  in  his  turn,  each  being  held  to  go  forward 


RE-ISSUES  569 

\ 

and  prove  his  case  against  those  who  made  oath  to  their  applications 
before  him.  If  either  party  wishes  the  time  for  taking  his  testimony, 
or  for  the  hearing,  postponed,  he  must  make  application  for  such 
postponement,  and  must  show  sufficient  reason  for  it  by  affidavit 
filed  before  the  time  previously  appointed  has  elapsed,  if  practicable ; 
and  must  also  furnish  his  opponent  with  copies  of  his  affidavits,  and 
with  seasonable  notice  of  the  time  of  hearing  his  application. 

When  an  interference  has  been  declared,  and  a  new  application 
claiming  the  invention  in  controversy  comes  into  the  office  before 
the  final  determination  of  such  interference,  the  new  application 
will  be  included  in  the  case,  and  the  proper  means  will  be  taken  to 
allow  all  the  parties  a  fair  hearing.  The  testimony  taken  by  the 
original  parties  will  be  retained  in  the  case,  provided  that  due 
opportunity  can  be  given  the  new  applicant  to  cross  examine  the 
witnesses.  If,  however,  on  the  original  interference,  an  appeal  has 
been  taken  to  the  examiners  in  chief,  before  the  new  application  is 
filed,  such  new  application  will  be  suspended  until  the  decision  in 
the  original  case,  after  which  a  new  interference  may  be  declared 
with  the  successful  party.  After  art  interference  has  been  declared, 
another  interference  will  not  be  declared  upon  a  new  application 
filed  by  cither  party  unless  it  is  shown  to  the  satisfaction  of  the 
office  that  such  party  has  new  testimony  which  he  could  not  have 
procured  in  time  for  the  hearing,  and  which  might  change  the 
decision. 

When  an  application  is  adjudged  to  interfere  with  a  part  only  of 
another  pending  application,  the  interfering  parties  will  be  permitted 
to  see  or  obtain  copies  of  so  much  only  of  the  specifications  as  refers 
to  the  interfering  claims.  And  either  party  may,  if  he  so  elect, 
withdraw  from  his  application  the  claims  adjudged  not  to  interfere, 
and  file  a  new  application  therefor.  In  such  case,  the  new  applica- 
tion will  be  examined  without  reference  to  the  interference  from 
which  it  was  withdrawn. 

Re-issues. 

A  re-issue  is  granted  to  the  original  patentee,  his  heirs,  or  the 
assignees  of  the  entire  interest,  when,  by  reason  of  an  insufficient  or 
defective  specification,  the  original  patent  is  invalid,  provided  the 


570  THE  LAW  OP  PATENTS. 

error  has  arisen  from  inadvertence,  accident,  or  mistake,  without 
any  fraudulent  or  deceptive  intention.  The  petition  for  a  re-issue 
must  show  that  all  parties  owning  any  undivided  or  territorial 
interest  in  the  patent  (irrespective  of  licenses)  concur  in  the  surren- 
der. And  a  certified  statement  of  the  title  of  the  party  surrender- 
ing must  be  filed  with  the  application.  Whatever  is  really  embraced 
in  the  original  invention,  and  so  described  or  shown  that  it  might 
have  been  embraced  in  the  original  patent,  may  be  the  subject  of  a 
re-issue  ;  but  an  applicant  will  not  be  allowed  the  benefit  of  proof 
that  there  was  more  in  his  invention  than  is  shown  in  his  original 
application,  model,  or  specimens. 

Ee-issued  patents  expire  at  the  same  time  that  the  original  patent 
would  have  done.  For  this  reason,  applications  for  re-issue  will  be 
acted  upon  immediately  after  they  are  completed. 

A  patentee  may,  at  his  option,  have  in  his  re-issue  a  separate  pat- 
ent for  each  distinct  part  of  the  invention  comprehended  in  his 
original  application,  by  paying  the  required  fee  in  each  case,  and 
complying  with  the  other  requirements  of  the  law,  as  in  original 
applications.  Each  division  of  a  re-issue  constitutes  the  subject  of  a 
separate  specification  descriptive  of  the  part  or  parts  of  the  inven- 
tion claimed  in  such  division ;  and  the  drawing  may  represent  only 
such  part  or  parts.  One  or  more  divisions  of  a  re-issue  may  be 
granted,  though  other  divisions  shall  have  been  postponed  or  re- 
jected. In  all  cases  of  applications  for  re-issues,  the  original  claim 
is  subject  to  re-examination,  and  may  be  revised  and  restricted  in 
the  same  manner  as  in  original  applications. 

The  following  are  appropriate  forms  of  application  for  re-issue : — 

(189.) 
Form  of  Surrender  of  a  Patent  for  He-issue. 

To  THE  COMMISSIONER  OF  PATENTS:  — 

The  petition  of  ,  of  ,  in  the  county  of 

and  State  of  , 

Respectfully  represents : 

That  he  did  obtain  letters-patent  of  the  United  States,  for  which  letters- 

patent  are  dated  on  the  first  day  >f  March,  1850 ;  that  he  now  believes  that  the  same 


DISCLAIMERS.  571 

are  inoperative  and  invalid  by  reason  of  a  defective  spefcification,  which  defect  has 
arisen  from  inadvertence  and  mistake.  He  therefore  prays  that  he  may  be  allowed 
to  surrender  the  same,  and  requests  that  new  letters-patent  may  issue  to  him, 
for  the  same  invention,  for  the  residue  of  the  period  for  which  the  original  patent 
was  granted,  under  the  amended  specification  herewith  presented,  he  having  paid 
thirty  dollars  into  the  treasury  of  the  United  States,  agreeably  to  the  requirements 
of  the  act  of  Congress  in  that  case  made  and  provided. 

(Signature.) 

(190.) 

Form  of  Oath  to  be  appended  to  Applications  for  lie-issue. 
CITY  (OR  TOWN)  OF  COUNTY  OF 


•S3. 

STATE  OF 

On  this  day  of  186      ,  before  the  subscriber,  a 

personally  appeared  the  above-named  and 

made  solemn  oath  (or  affirmation)  that  he  verily  believes  that,  by  reason  of  an 
insufficient  or  defective  specification,  his  aforesaid  patent  is  not  fully  valid  and 
available  to  him,  and  that  the  said  error  has  arisen  from  inadvertence,  accident,  or 
mistake,  and  without  any  fraudulent  or  deceptive  intention,  to  the  best  of  hi* 
knowledge  or  belief. 

(Signature.'), 
(Signed.) 

Applications  for  re-issues  will  not  be  kept  secret  ;  and  information 
respecting  the  same  will  be  furnished  "upon  inquiry,  as  well  as  copies 
of  the  proposed  claims  for  publication. 

Disclaimers. 

Where,  by  inadvertence,  accident,  or  mistake,  the  original  patent 
is  too  broad,  a  disclaimer  may  be  filed  either  by  the  original  patentee 
or  by  any  of  his  assignees. 

The  following  is  a  sufficient  form  for  a  disclaimer  :  — 

(191.) 
Form  for  a  Disclaimer  by  an  Assignee. 

To  THE  COMMISSIONER  OF  PATENTS  :  — 
The  petition  of  of  in  the  County  of 

and  State  of 
Respectfully  represents  : 

That  he  has,  by  grant,  duly  recorded  in  the  patent  office,  become  the  owner  of 
38 


572  THE  LAW   OP  PATENTS. 

a  right  foi  the  several  States  of  Massachusetts,  Connecticut,  and  Rhode  Island,  to 
certain  improvements  in  the  steam-engine,  for  which  letters-patent  of  the  United 
States  were  granted  to  of  in  the  State  of 

dated  on  the  day  of  18        ;  that 

he  has  reason  to  believe  that  through  inadvertence  and  mistake,  the  claim  made 
in  the  specification  of  said  letters-patent  is  too  broad,  including  that  of  which  the 
said  patentee  was  not  the  first  inventor.  Your  petitioner,  therefore,  hereby  enters 
his  disclaimer  to  that  part  of  the  claim  in  the  aforenamed  specification  which  is  in 
the  following  words,  to  wit:  "I  also  claim  the  particular  manner  in  which  the 
piston  of  the  above-described  engine  is  constructed,  so  as  to  insure  the  close  fitting 
of  the  packing  thereof  to  the  cylinder,  as  set  forth ; "  which  disclaimer  is  to  operate 
to  the  extent  of  the  interest  in  said  letters-patent  vested  in  your  petitioner,  who 
has  paid  ten  dollars  into  the  treasury  of  the  United  States,  agreeably  to  the  re- 
quirements of  the  act  of  Congress  in  that  case  made  and  provided. 

(Signature.') 

The  above  form  is  for  disclaimer  by  an  assignee.  When  the  dis- 
claimer is  made  by  the  original  patentee,  it  must,  of  course,  be  so 
worded  as  to  express  that  fact. 

Extensions. 

The  applicant  for  an  extension  must  file  his  petition  and  pay  iu 
the  requisite  fee  at  least  ninety  days  prior  to  the  expiration  of  his 
patent.  The  commissioner  has  no  power  to  renew  a  patent  granted 
since  March  2,  1861 ;  but  he  may  extend  one  granted  before,  for 
seven  years. 

The  questions  which  arise  on  each  application  for  an  extension 
are :  — 

Is  the  invention  novel  ? 

Is  it  useful  f 

Is  it  valuable  and  important  to  the  public  ? 

Has  the  inventor  been  adequately  remunerated  for  his  time  and 
expense  in  originating  and  perfecting  it  ? 

Has  he  used  due  diligence  in  introducing  his  invention  into  gene- 
ral use  ? 

The  first  two  questions  will  be  determined  upon  the  result  of  an 
examinatiDn  in  the  patent  office;  as  will  also  the  third,  to  some 
extent. 

To  enable  the  commissioner  to  come  to  a  correct  conclusion  iu 
regard  to  the  third  point  of  inquiry,  the  applicant  should,  if  possi- 


EXTENSIONS.  573 

ble,  procure  the  testimony  of  persons  disinterested  in  the  invention, 
which  testimony  should  be  taken  under  oath.  In  regard  to  the 
fourth  and  fifth  points  of  inquiry,  in  addition  to  his  own  oath  show- 
ing his  receipts  and  expenditures  on  account  of  the  invention,  by 
whbh  its  value  is  to  be  ascertained,  the  applicant  should  show,  by 
testimony  on  oath,  that  he  has  taken  all  reasonable  measures  to 
introduce  his  invention  into  general  use ;  and  that,  without  default 
or  neglect  on  his  part,  he  has  failed  to  obtain  from  the  use  and  sale 
of  the  invention  a  reasonable  remuneration  for  the  time,  ingenuity, 
and  expense  bestowed  on  the  same,  and  the  introduction  thereof  into 
use. 

In  case  of  opposition  by  any  person  to  the  extension  of  a  patent, 
both  parties  may  take  testimony,  each  giving  reasonable  notice  to 
the  other  of  the  time  and  place  of  taking  said  testimony,  which  shall 
be  taken  according  to  the  rules  prescribed  by  the  Commissioner  of 
Patents  in  cases  of  interference. 

A  monopoly  of  his  invention  is  secured  by  the  law  now  in  force 
to  the  inventor  for  the  term  of  seventeen  years,  with  a  view  to 
compensate  him  for  his  time  and  expense  in  originating  and  perfect- 
ing it.  At  the  end  of  the  time  for  which  his  patent  runs  his  mo- 
nopoly should  cease,  and  the  invention  become  public  property, 
unless  he  can  show  good  reason  for  the  contrary.  The  presump- 
tion is  always  against  his  application ;  and  if  he  cannot  show  that 
his  invention  is  novel,  useful,  and  valuable,  and  important  to  the 
public,  and  that  having  made  all  reasonable  effort  to  introduce  it 
into  general  use,  he  has  not  been  adequately  remunerated  for  his 
time  and  expense  in  discovering  and  perfecting  it,  the  applicant 
cannot  have  an  extension.  Therefore,  the  applicant  for  an  exten- 
sion must  furnish  to  the  office  a  statement  in  writing,  under  oath, 
of  the  ascertained  value  of  the  invention,  and  of  his  receipts  and 
expenditures.  This  statement  should  be  made  particular  and  in 
detail,  unless  sufficient  reason  is  set  forth  why  such  a  statement  can- 
not be  furnished.  This  statement  should  be  filed  within  thirty  days 
after  filing  his  petition. 

Any  person  who  intends  to  oppose  an  application  for  extension 
may,  at  any  time  after  such  application  has  been  made,  give  notice 


574  THE  LAW  OF  PATENTS. 

of  such  intention  to  the  applicant.  After  this  he  will  be  regarded 
as  a  party  in  the  case,  and  be  entitled  to  notice  of  the  time  and 
place  of  taking  testimony,  as  well  as  to  a  list  of  the  names  an<f 
residences  of  witnesses  whose  testimony  may  have  been  previous!} 
taken  ;  but  he  must  file  his  reasons  in  the  patent  office  at  least 
twenty  days  before  the  day  of  hearing.  The  person  opposing  the 
extension  will  be  entitled  to  a  copy  of  the  application,  and  of  any 
other  papers  on  file,  upon  paying  the  costs  of  copying. 

In  contested  cases,  no  testimony  will  be  received,  unless  by  con- 
sent, which  has  been  taken  within  thirty  days  next  after  the  filing 
of  the  petition  or  the  extension.  In  the  notice  of  the  application 
for  an  extension,  a  day  will  be  fixed  for  the  reception  of  testimony ; 
a  day  ten  days  later  for  the  reception  of  arguments  ;  and  a  day  ten 
days  after  this  for  a  hearing.  Applications  for  a  postponement  of 
the  hearing  must  be  made  and  supported  according  to  the  same 
rules  as  are  to  be  observed  in  the  case  of  interferences.  But  they 
will  not  be  granted  in  such  a  manner  as  to  cause  a  risk  of  prevent- 
ing a  decision  in  season. 

Designs. 

Designs  are  provided  for  by  the  Act  of  July  8, 1870,  Sect.  71  to 
76,  as  follows :  — 

Any  person,  who  by  his  own  industry,  genius,  efforts,  and  expense, 
has  invented  or  produced  any  new  and  original  design  for  a  manu- 
facture, bust,  statue,  alto-relievo,  or  bas-relief ;  any  new  and  original 
design  for  the  printing  of  woollen,  silk,  cotton,  or  other  fabrics  ;  any 
new  and  original  impression,  ornament,  pattern,  print,  or  picture, 
to  be  printed,  painted,  cast,  or  otherwise  placed  on  or  worked  into 
any  article  of  manufacture ;  or  any  new,  useful,  and  original  shape 
or  configuration  of  any  article  of  manufacture,  the  same  not  having 
been  known  or  used  by  others  before  his  invention  or  production 
thereof,  or  patented  or  described  in  any  printed  publication, —  m«.y, 
upon  payment  of  the  duty  required  by  law,  and  other  due  proceed- 
ings had  the  same  as  in  cases  of  inventions  or  discoveries,  obtain  a 
patent  therefor.  And  the  commissioner  may  dispense  with  models 


I 

FORM  OP  APPLICATION  FOE  PATENTS   OR  DESIGNS.          575 

of  designs  when  the  design  can  be  sufficiently  represented  by  draw- 
ings or  photographs. 

Patents  for  designs  may  be  granted  for  the  term  of  three  years 
and  six  months,  or  for  seven  years,  or  for  fourteen  years,  as  the 
applicant  may  in  his  application  elect.  And  patentees  of  designs 
issued  prior  to  March  2, 1861,  shall  be  entitled  to  extension  of  their 
respective  patents  for  the  term  of  seven  years,  in  the  same  manner 
and  under  the  same  restrictions  as  are  provided  for  the  extension 
of  patents  for  inventions  or  discoveries  issued  prior  to  the  second 
day  of  March,  1861. 

The  following  are  the  rates  of  fees  in  design  cases  :  — 

For  three  years  and  six  months,  ten  dollars. 

For  seven  years,  fifteen  dollars. 

For  fourteen  years,  thirty  dollars. 

For  all  other  cases  in  which  fees  are  required,  the  same  rates  as 
in  cases  of  inventions  or  discoveries. 

All  the  regulations  and  provisions  which  apply  to  the  obtaining 
or  protection  of  patents  for  inventions  or  discoveries,  not  inconsist- 
ent with  the  provisions  of  the  statute,  apply  to  patents  for  designs. 

The  following  forms  are  proper  to  be  observed  in  applications  of 

this  nature. 

| 

(192.) 
Form  of  Application  for  Patents  for  Designs. 

TO   THE    COMMISSIONEU   OF   PATENTS:  — 

The  petition  of  of  ,  in  the  County  of 

and  State  of  » 

Respectfully  represents : 

That  your  petitioner  has  invented  or  produced  a  new  and  original  design  for 
,  which  he  verily  believes  has  not  been  known  prior  to  the  pro- 
duction thereof  by  your  petitioner.  He  therefore  prays  that  letters-patent  of  the 
United  States  may  be  granted  to  him  therefor,  for  the  term  of 
years,  vesting  in  him  and  his  legal  representatives  the  exclusive  right  to  the 
same,  upon  the  terms  and  conditions  expressed  in  the  act  of  Congress  in  that  case 
made  and  provided,  he  having  paid  dollars  into  the  treasury, 

and  complied  with  the  other  provisions  of  the  said  act 

(Signature.) 


576  THE  LAW  OF  PATENTS. 

The  following  may  be  used  as  a  form  of  specification  for  de- 
signs :  — 

(193.) 

Form  of  Specification  for  Designs. 

To   ALL   WHOM   IT  MAY   CONCERN  I  — 

Be  it  known  that  I  ,  of  the  city  of  ,  in 

the  County  of  ,  and  State  of  ,  have  originated 

and  designed  a  new  pattern  for  carpets  or  other  fabrics  (or  design  for  a  trade-mark) 
of  which  the  following  is  a  full,  clear,  and  exact  description,  reference  being  had 
to  the  accompanying  specimens  or  drawings,  making  part  of  this  specification. 

[Here  follows  a  description  of  the  design,  with  reference  to  the  specimen  or 
drawing,  the  specification  to  conclude  as  follows  :  — ] 

Claim. 

What  I  claim  as  my  invention  and  desire  to  secure  by  letters-patent  is  the  de- 
sign or  pattern  for  carpets  or  other  fabrics  (or  design  for  a  trade-mark)  herein  set 
forth. 

Witnesses.  .  (Signature.) 


1 


(194.) 
Form  of  Oath. 

CITY  (OB  TOWN)  OF  AND  COUNTY  OF 

>-S8. 

STATE  OF 

On  this  day  of  ,  186  ,  before  the  sub- 

scriber, a  ,  personally  appeared  the  within-named 

and  made  solemn  oath  (or  affirmation,  as  the  case  may  be)  that  he  verily  believes 
himself  to  be  the  original  and  first  inventor  or  producer  of  the  design  for  a 
composition  in  alto-relievo,  and  that,  he  does  not  know  or  believe  that  the  same 
was  ever  before  known  or  used,  and  that  he  is  a  citizen  of  the  United  States. 

(Signature.) 
Foreigrn  Patents. 

The  taking-out  of  a  patent  in  a  foreign  country  does  not  prejudice 
a  patent  previously  obtained  here  ;  nor  does  it  prevent  obtaining  a 
patent  here  subsequently,  if  the  invention  has  not  been  in  public 
use  in  the  United  States  for  more  than  two  years.  When  applica- 
tion is  made  for  a  patent  for  an  invention  which  has  been  already 


CAVEATS.  577 

patented  abroad,  the  inventor  will  be  required  to  make  oath,  that, 
according  to  the  best  of  his  knowledge  and  belief,  the  same  has  not 
been  introduced  into  public  and  common  use  in  the  United  States 
for  more  than  two  years  prior  to  the  application.  An  applicant  who 
has  obtained  a  foreign  patent  should  state  that  a  foreign  patent,  or 
patents,  have  been  obtained,  and  should  give  the  date  of  the  patent 
having  the  shortest  term.  The  reason  of  this  is,  that  the  statute 
provides,  that  the  patent  granted  in  this  country  should  expire  with 
the  foreign  patent,  or,  if  there  be  more  than  one,  at  the  same  time 
with  that  having  the  shortest  term ;  and  in  no  case  can  it  be  in  force 
more  than  seventeen  years. 

Caveats. 

Any  citizen  of  the  United  States,  or  alien  who  has  resided  for  ono 
year  last  past  in  the  United  States,  and  has  made  oath  of  his  inten- 
tion to  become  a  citizen  thereof,  can  file  a  caveat  in  the  secret 
archives  of  the  patent  office  on  the  payment  of  a  fee  of  ten  dollars 
therefor.  And  if,  at  any  time  within  one  year  thereafter,  another 
person  applies  for  a  patent  for  the  same  invention,  the  caveator  will 
be  entitled  to  notice  to  file  his  application,  and  to  go  into  interference 
with  the  applicant  for  the  purpose  of  proving  priority  of  invention, 
and  obtaining  the  patent  if  he  succeed.  He  must  file  his  applica- 
tion within  three  months  from  the  day  on  which  the  notice  to  him  is 
deposited  in  the  post  office  at  Washington,  adding  the  regular  time 
for  the  transmission  of  the  same  to  him  ;  and  the  day  when  the  time 
for  filing  expires  shall  be  mentioned  in  the  notice  or  indorsed  there- 
on. The  caveator  will  not  be  entitled  to  notice  of  any  application 
pending  at  the  time  of  filing  his  caveat,  nor  of  any  application  filed 
after  the  expiration  of  one  year  from  the  date  of  filing  the  caveat ; 
but  he  may  renew  his  caveat  at  the  end  of  one  year  by  paying  a 
second  caveat  fee  of  ten  dollars,  which  will  continue  it  in  force  for 
one  year  longer,  and  so  on  from  year  to  year  as  long  as  the  caveator 
may  desire. 

No  caveat  can  be  filed  in  the  secret  archives  of  the  office  unless 
accompanied  by  an  oath  of  the  caveator  that  he  is  a  citizen  of  the 
United  States,  or  that  he  is  an  alien  and  has  resided  for  one  year  last 


578  THE  LAW  OF  PATENTS. 

past  within  the  United  States,  and  has  made  oath  of  his  intention  to 
become  a  citizen  thereof;  nor  unless  the  applicant  also  states,  under 
oath,  that  he  believes  himself  the  original  inventor  of  the  art,  ma- 
chine, or  improvement  set  forth  in  his  caveat. 

A  caveat  need  not  contain  as  particular  a  description  of  the  hi 
vention  as  is  requisite  in  a  specification ;  but  still  the  description 
should  be  sufficiently  precise  to  enable  the  office  to  judge  whether 
there  is  a  probable  interference  when  a  subsequent  application  is 
filed. 

Caveat  papers  cannot  be  withdrawn  from  the  office  nor  undergo 
alteration  after  they  have  once  been  filed  ;  but  additional  papers  rel- 
ative to  the  invention  may  be  appended  to  the  caveat  (their  date 
being  noted),  provided  they  are  merely  amendatory  of  the  original 
caveat.  In  the  case  of  filing  papers  supplementary  to  an  original 
caveat,  the  right  to  notice  in  regard  to  the  subject  of  those  papers 
expires  with  the  caveat ;  and  any  additional  papers  not  relating  to 
the  invention  first  caveated  will  receive  no  notice.  The  caveator,  or 
any  person  properly  authorized  by  him,  can  at  any  time  obtain 
copies  of  the  caveat  papers  at  the  usual  rates. 

The  caveat  should  be  accompanied  by  drawings  or  sketches. 

The  following  is  a  proper  form  of  a  caveat :  — 


(195.) 

Form  of  a  Caveat, 

To  THE  COMMISSIONER  OF  PATENTS:  — 

The  petition  of  ,  of  ,  in  tke  county  of 

,  and  State  of  , 


Respectfully  represents : 

That  he  has  made  certain  improvements  in 

and  that  he  is  now  engaged  in  making  experiments  for  the  pur- 
pose of  perfecting  the  same,  preparatory  to  his  applying  for  letters-patent  therefor. 
He  therefore  prays  that  the  subjoined  description  of  his  invention  may  be  filed  as 
a  caveat  in  the  confidential  archives  of  the  patent  office,  agreeably  to  the  pro- 
visions of  the  act  of  Congress  in  that  case  made  and  provided ;  he  having  paid  ten 


ASSIGNMENTS  AND  GEANTS.  579 

dollars  into  the  treasury  of  the  United  States,  and  otherwise  complied  with  the 
requirements  of  the  said  act. 

MARCH  1,  1856.  (Signature.) 

[Here  should  follow  a  description  of  the  general  principles  of  the  invention  so 
far  as  it  has  been  completed.] 

The  caveator  must  make  oath  or  affirmation  substantially  accord- 
ing to  the  form  already  given. 

%  The  Repayment  of  Money. 

Money  paid  by  actual  mistake  will  be  refunded,  but  a  mere  change 
of  purpose  after  the  payment  of  money  will  not  entitle  a  party  to 
demand  such  return. 


Assignments  and  Grants. 

A  patent  may  be  assigned,  either  as  to  the  whole  interest,  or  any 
undivided  part  thereof,  by  any  instrument  of  writing.  No  particu- 
lar form  of  words  is  necessary  to  constitute  a  valid  assignment ;  nor 
need  the  instrument  be  sealed,  witnessed,  or  acknowledged.  A 
patent  will,  upon  request,  issue  directly  to  the  assignee,  or  assignees, 
of  the  entire  interest  in  any  invention,  or  to  the  inventor  and  the 
assignee  jointly,  when  an  undivided  part  only  of  the  entire  interest 
has  been  conveyed.  In  every  case  where  a  patent  issues  or  re-issues 
to  an  assignee,  the  assignment  must  be  recorded  at  the  patent  office 
at  least  five  days  before  the  issue  of  the  patent ;  and  the  specification 
must  be  sworn  to  by  the  inventor.  Every  assignment  ov  grant  of 
an  exclusive  territorial  right  must  be  recorded  in  the  patent  office 
within  three  months  from  the  execution  thereof;  otherwise  it  will 
be  void  as  against  any  subsequent  purchaser  or  mortgagee  for  a 
valuable  consideration  without  notice :  but,  if  recorded  after  that 
time,  it  will  protect  the  assignee,  or  grantee,  against  any  sucli  subse- 
quent purchaser  whose  assignment  or  grant  is  not  then  on  record. 

The  receipt  of  assignments  is  not  generally  acknowledged  by  the 
office.  They  will  be  recorded  in  their  turn  within  a  few  days  after 
their  reception,  and  then  transmitted  to  persons  entitled  to  them. 


580  THE  LAW  OP  PATENTS. 

A  five-cent  stamp  is  required  for  each  sheet  or  piece  of  pape*  on 
which  an  assignment  may  be  written. 

(19G.) 

Form  of  Assignment  of  the  entire  Interest  in  Letters-Patent 
before  obtaining  the  same,  and  to  be  recorded  prepara- 
tory thereto. 

Whereas  I,  ,  of  ,  in  the  County  of 

and  State  of  ,  have  invented  certain  new 

and  useful  improvements  in  ploughs,  for  which  I  am  about  to  make  application  for 
letters-patent  of  the  United  States  ;  and  •wdiereas  of 

,  has  agreed  to  purchase  from  me  all  the  right,  title,  and  interest  which 
I  have,  or  may  have,  in  and  to  the  said  invention,  in  consequence  of  the  grant  of 
letters-patent  therefor,  and  has  paid  to  me,  the  said  the  sum 

of  five  thousand  dollars,  the  receipt  of  which  is  hereby  acknowledged :  Now  this 
indenture  witnesseth,  that,  for  and  in  consideration  of  the  said  sum  to  me  paid,  I 
have  assigned  and  transferred,  and  do  hereby  assign  and  transfer,  to  the  said 
,  the  full  and  exclusive  right  to  all  the  improvements  made  by 
me,  as  fully  set  forth  and  described  in  the  specification  which  I  have  prepared  and 
executed  preparatory  to  the  obtaining  of  letters-patent  therefor.  And  I  do  here- 
by authorize  and  request  the  Commissioner  of  Patents  to  issue  the  said  letters- 
patent  to  the  said  ,  as  the  assignee  of  my  whole  right  and  title 
thereto,  for  the  sole  use  and  behoof  of  the  said  and  his  legal 
representatives. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  my  seal  this 
16th  day  of  February,  1856. 

(Signature.')     (Seal.) 

Sealed  and  Delivered  in  Presence  of 

(107.) 


"Whereas  I,  of  in  the  County  of 

and  State  of  did  obtain  letters-patent 

of  the  United  States  for  ,  which  letters-patent 

bear  date  the  day  of  18        ;  and  whereas 

of  is  desirous  of  acquiring  an  inter- 

est therein :  Now  this  indenture  witnesseth,  that  for  and  in  consideration  of  the 
sum  of  two  thousand  dollars,  to  me  in  hand  paid,  the  receipt  of  which  is  herebj 
acknowledged,  I  have  granted,  sold,  and  set  over,  and  do  hereby  grant,  sell,  and 
set  over,  unto  the  said  all  the  right,  title,  and  interest  which  I  have 


OFFICE   FEES,   AND  HOW  PAYAELE.  581 

in  the  said  invention,  as  secured  tome  by  said  letters-patent  for,  to, and  in  the  sev- 
eral States  of  New  York,  New  Jersey,  and  Pennsylvania,  and  in  no  other  place 
or  places  ;  the  same  to  be  held  and  enjoyed  by  the  said  for 

his  own  use  and  behoof,  and  for  the  use  and  behoof  of  his  legal  representatives,  to 
the  full  end  of  the  term  for  which  said  letters-patent  are  granted  (if  it  is  intended 
to  grant  for  any  extended  term,  then  add  —  and  for  the  term  of  any  extension 
thereof),  as  fully  and  entirely  as  the  same  would  have  been  held  and  enjoyed  by 
me  had  this  grant  and  sale  not  been  made. 

In  Testimony  Whereof,  I  hereunto  set  my  hand  and  affix  my  seal  this 
day  of  18 

(Signature.)     (Seal) 
Sealed  and  Delivered  in  Presence  of 


The  Office  Fees,  and  how  payable. 

Nearly  all  the  fees  payable  to  the  patent  office  are  positively  re- 
quired by  law  to  be  paid  in  advance.  For  the  sake  of  uniformity 
and  convenience,  the  remaining  fees  are  required  to  be  paid  in  the 
same  manner ;  that  is  to  say,  before  the  labor  is  performed  for 
•which  they  are  to  be  received  in  payment. 

The  following  is  the  tariff  of  fees  established  by  law :  — 

On  every  application  for  a  design,  for  three  years  and  six 

months $10.00 

On  every  application  for  a  design,  for  seven  years     .        .  15.00 

On  every  application  for  a  design,  for  fourteen  years         .  30.00 

On  every  caveat 10.00 

On  every  application  for  a  patent 15.00 

On  issuing  each  original  patent 20.00 

On  filing  a  disclaimer 

On  every  application  for  a  reissue 80.00 

On  every  application  for  a  division  of  a  re-issue       .        .  80.00 

On  every  application  for  an  extension      ....  50.00 

On  the  grant  of  every  extension 50.00 

On  the  first  appeal  from  a  primary  examiner  to  examiners 

in  chief 10.00 

On  appeal  to  the  commissioner  from  examiners  in  chief   .  20.00 

On  depositing  a  trade-mark  for  registration.     .         •  25.00 


582  THE  LAW  OF  PATENTS. 

On  every  copy  of  a  patent  or  other  instrument,  for  every 

100  words 10 

On  every  copy  of  drawing  the  cost  of  having  it  made 

For  recording  every  assignment  of  300  words  or  under     .  1.00 

For  recording  every  assignment,  if  over  300  and  not  over 

1,000  words 2.00 

For  recording  every  assignment,  if  over  1,000  words         .  3.00 

The  final  fee  on  issuing  a  patent  must  be  paid  within  six  months 
after  the  time  at  which  the  patent  was  allowed,  and  notice  thereof 
sent  to  the  applicant  or  his  agent.  And  if  the  final  fee  for  such 
patent  be  not  paid  within  that  time,  the  patent  will  be  withheld,  and 
the  invention  therein  described  become  public  property  as  against 
the  applicant  therefor,  unless  he  shall  make  a  new  application  there- 
for within  two  years  from  the  date  of  the  allowance  of  the  original 
application. 

The  money  for  the  payment  of  fees  should  be  deposited  with  an 
assistant  treasurer,  or  other  officer  authorized  to  receive  the  same, 
taking  his  certificate,  and  remitting  the  same  to  this  office.  When 
this  cannot  be  done  without  inconvenience,  the  money  may  be  re- 
mitted by  mail ;  and  in  every  case  the  letter  should  state  the  exact 
amount  enclosed.  Letters  containing  money  should  be  registered 
at  the  post-office  where  mailed. 

How  Fees  may  be  paid. 

The  statute  of  1870  provides  that  the  following  officers  are  au- 
thorized to  receive  patent-fees  on  account  of  the  Treasurer  of  the 
United  States,  and'  to  give  receipts  and  certificates  of  deposit 
therefor ;  namely,  the  Commissioner  of  Patents,  or  the  Treas- 
urer, or  any  of  the  assistant  treasurers,  of  the  United  States, 
or  any  of  the  designated  depositaries,  national  banks,  or  receivers 
of  public  money,  designated  by  the  Secretary  of  the  Treasury 
for  that  purpose ;  and  he  shall  give  the  depositor  a  receipt  or  cer- 
tificate of  deposit  therefor.  And  all  money  received  at  the  pat- 
ent office  for  any  purpose,  or  from  any  source  whatever,  shall  be 
paid  into  the  treasury  as  received,  without  any  deduction  whatever ; 


TAKING  AND  TKANSMITTING  TESTIMONY.  583 

and  all  disbursements  for  said  office  shall  be  made  by  tho  disbursing 
clerk  of  the  Interior  Department. 

All  money  sent  by  mail,  either  to  or  from  the  patent  office,  will 
be  at  the  risk  of  the  owner.  In  no  case,  should  money  be  sent  en- 
closed with  models.  All  payments  to  or  by  the  office  should  be  paid 
in  specie,  or  treasury-notes,  or  national  bank-notes. 

Taking1   and  Transmitting:  Testimony. 

The  clerks  of  the  circuit  courts  of  the  United  States  may  issue 
subpoenas  to  compel  the  attendance  of  witnesses  when  depositions 
are  to  be  read  in  evidence  in  any  contested  cases  in  the  patent 
office. 

In  interferences  and  other  contested  cases,  the  following  rules 
have  been  established  for  taking  and  transmitting  evidence :  — 

1.  That  before  the  deposition  of  a  witness  or  witnesses  be  taken 
by  either  party,  notice  shall  be  given  to  the  opposite  party,  as  here- 
inafter provided,  of  the  time  and  place  when  and  where  such  deposi- 
tion or  depositions  will  be  taken,  with  the  names  and  residences  of 
the  witness  or  witnesses,  so  that  the  opposite  party,  either  in  person 
or  by  attorney,  shall  have  full  opportunity  to  cross-examine  the  wit- 
ness or  witnesses.     And  such  notice  shall,  with  proof  of  set  vice  of 
the  same,  be  attached  to  the  deposition  or  depositions,  whether  the 
party  cross-examine  or  not,  and  such  notice  shall  be  given  in  suffi- 
cient time  for  the  appearance  of  the  opposite  party,  and  for  the 
transmission  of  the  evidence  to  the  patent  office  before  the  day  of 
hearing. 

2.  That,  whenever  a  party  relies  upon  a  caveat  to  establish  the 
date  of  his  invention,  a  certified  copy  thereof  must  be  filed  in  evi- 
dence, with  due  notice  to  the  opposite  party,  as  no  notice  can  be 
taken  by  the  office  of  a  caveat  filed  in  its  secret  archives. 

3.  That  all  evidence,  &c.,  shall  be  sealed,  and  addressed  to  the 
Commissioner   of  Patents  by  the  person  before  whom  it  shall  be 
taken,  and  so  certified  thereon. 

4.  That  the  certificate  of  the  magistrate  taking  the  evidence  shall 
be  substantially  in  the  following  form,  and  written  upon  the  en- 
velope, viz. :  — 


584  THE  LAW  OF  PATENTS. 

(198.) 
Form  of  Magistrate's  Certificate. 

I  hereby  certify  that  the  depositions  of  A  B,  C  D,  &c.,  relating  to  the  matter  of 
interference  between  E  F  and  G  II,  were  taken,  sealed  up,  and  addressed  to  tho 
Commissioner  of  Patents  by  me. 

(Signature.) 

5.  Iii  cases  of  extension  where  no  opposition  is  made,  the  party's 
own  testimony  will  be  received  from  the  applicant ;  and  such  testi- 
mony as  may  have  been  taken  by  the  applicant  prior  to  notice  of 
opposition  shall  be  received,  unless  taken  within  thirty  days  after 
filing  the  petition  for  the  extension :  but  the  applicant  shall  give 
prompt  notice  to  the  opposing  party  or  parties  of  the  names  and 
residences  of  the  witnesses  whose  testimony  has  thus  been  taken. 

No  evidence  touching  the  matter  at  issue  will  be  considered  upon 
the  day  of  hearing,  which  shall  not  have  been  taken  and  filed  in 
compliance  with  these  rules :  Provided,  Notice  of  the  objection  has 
been  given  to  the  other  party.  But  if  either  party  shall  be  unable, 
for  good  and  sufficient  reasons,  to  procure  the  testimony  of  a  wit 
ness  or  witnesses  within  the  stipulated  time,  then  it  shall  be  tl"  3 
duty  of  said  party  to  give  notice  of  the  same  to  the  Commission  3r 
of  Patents,  accompanied  by  statements,  under  oath,  of  the  cause  of 
such  inability,  and  of  the  names  of  such  witnesses,  and  of  the  facts 
expected  to  be  proved  by  them,  and  of  the  steps  which  have  been 
taken  to  procure  said  testimony,  and  of  the  time  or  times  when 
efforts  have  been  made  to  procure  it ;  which  last-mentioned  notice 
to  the  commissioner  shall  be  received  by  him  previous  to  the  day 
of  hearing  aforesaid. 

The  notice  for  taking  testimony  must  be  served  by  delivering  to 
the  adverse  party  a  copy.  If  he  is  not  found,  such  service  may  be 
made  upon  his  agent  or  attorney  of  record,  or  by  leaving  a  copy  at 
the  party's  usual  place  of  residence,  with  some  member  of  the  family 
who  has  arrived  at  the  years  of  discretion.  This  notice  must  be 
annexed  to  the  deposition,  with  a  certificate  duly  sworn  to,  stating 
the  manner  and  time  in  which  the  service  was  made. 

The  testimony  must  (if  either  party  desires  it)  be  taken  in 


FORM   IN   TAKING   OF   DEPOSITIONS.  585 

answer  to  interrogatories,  having  the  questions  and  answers  com- 
mitted to  writing  in  their  regular  order  by  the  magistrate,  or,  under 
his  direction  by  some  person  not  interested  in  the  issue,  nor  the 
agent  or  attorney  of  one  who  is.  The  deposition,  when  complete, 
must  be  signed  by  the  witness.  The  magistrate  must  append  to  the 
deposition  his  certificate,  stating  the  time  and  place  at  which  it  was 
taken,  the  names  of  the  witnesses,  the  administration  of  the  oath, 
at  whose  request  the  testimony  was  taken,  the  occasion  upon  which 
it  is  intended  to  be  used,  the  names  of  the  adverse  party  (if  any), 
and  whether  they  were  present. 

No  notice  will  be  taken,  at  the  hearing,  of  any  merely  formal  or 
technical  objection,  unless  it  may  reasonably  be  presumed  to  have 
wrought  a  substantial  injury  to  the  party  raising  the  objection  ;  nor 
even  then,  unless,  as  soon  as  that  party  became  aware  of  the  objec- 
tion, he  immediately  gave  notice  thereof  to  this  office,  and  also  to 
the  opposite  party,  informing  him  at  the  same  time,  that,  unless  cor- 
rected, he  should  urge  his  objection  at  the  hearing.  Each  party 
may  furnish  at  the  hearing  an  abstract  of  the  testimony  filed  by 
him,  not  exceeding  in  length  one-sixth  of  the  original. 

The  following  are  useful  forms  for  the  taking  of  depositions : 

(199.) 

Form  in  Tolling  of  Depositions. 

A  B,  being  duly  sworn,  doth  depose  and  say,  in  answer  to  interrogatories  pro- 
posed to  him  by  C  D,  counsel  for  E  F,  as  follows,  viz  :— 

1.  Interrogatory.     What  is  your  name,  your  residence,  and  occupation  ? 

1.  Answer.     My  name  is  A  B  ;  I  am  a  carpenter,  and  reside  in  Boston,  Mass. 

And  in  answer  to  cross-interrogatories  proposed  to  him  by  G  II,  counsel  for  I  K, 
as  follows  : — 

1.  Cross-interrogatory,  fyc. 

(Signed)  A  B. 

STATE  OF  J 

>-ss. 
COUNTY  OF  ) 

At  ,  in  said  county,  on  the  day  of  ,  A.  D.  18     . 

before  me  personally  appeared  the  above-named  A  B,  and  made  oath  that  the  fore- 
going deposition,  by  him  subscribed,  contains  the  whole  truth,  and  nothing  but  the 
truth. 


586  THE  LAW  OF  PATENTS. 

The  said  deposition  is  taken  at  the  request  of  E  F,  to  be  used  upon  the  hearing 

of  an  interference  between  the  claims  of  the  said  E  F  and  those  of  I  K,  before  the 

Commissioner  of  Patents  of  the  United  States,  at  his  office,  on  the  day  of 

next.     The  said  I  K  was  duly  notified,  as  appears  by  the  original  notice 

hereto  annexed,  and  attended  by  G  H,  his  counsel. 

Certified  by  me  :  (Signature.) 

The  magistrate  must  then  seal  up  the  deposition  when  completed , 
and  indorse  upon  the  envelope  a  certificate  according  to  the  form 
before  the  last. 

After  a  second  rejection,  none  of  the  papers  can  be  inspected,  save 
in  the  presence  of  a  sworn  officer,  nor  will  any  of  the  papers  be 
returned  to  the  applicant  or  agent. 

Whenever  it  shall  be  found  that  two  or  more  parties  whose  inter- 
ests are  in  conflict  are  represented  by  the  same  attorney,  the  exam- 
iner in  charge  will  notify  each  of  said  principal  parties  of  this  fact. 


The  Filing  and  Preservation  of  Papers. 

All  claims,  and  specifications  filed  in  this  office  (including  amend- 
ments) should  be  written  in  a  fair,  legible  hand,  without  interlinea- 
tions or  erasures,  except  such  as  are  clearly  stated  in  a  marginal  or 
foot  note,  written  on  the  same  sheet  of  paper ;  or,  failing  in  which, 
the  office  may  require  them  to  be  printed.  All  papers  filed  in  the 
office  will  be  regarded  as  permanent  records  of  the  office,  and  must 
never,  on  any  account,  be  changed,  further  than  to  correct  mere 
clerical  mistakes. 

Amendments. 

The  applicant  has  a  right  to  amend,  of  course,  after  the  first  re- 
jection ;  and  he  may  amend  after  the  second,  if  the  examiner  therein 
present  any  new  references,  unless  the  devices  claimed  by  him  in 
the  first  amendment  were  entirely  different  from  those  originally 
relied  upon,  and  not  mere  modifications  of  them.  After  a  second 
rejection,  and  before  appeal  to  the  examiners  in  chief,  the  applicant 
may  draw  up  special  amendments,  and  present  the  same  to  the 
commissioner,  together  with  an  affidavit  showing  good  cause  why 


FORM  OP  AMENDMENT   OF  SPECIFICATION.  587 

the  amendments  were  not  sooner  offered,  whereupon  the  commis- 
sioner may,  in  his  discretion,  grant  leave  to  make  such  special 
amendments,  and  allow  a  reconsideration.  No  alterations  or 
amendments,  except  of  clerical  errors,  will  be  allowed  after  an 
appeal  to  the  examiner  in  chief,  or  after  the  patent  has  been  ordered 
to  issue,  unless  the  same  are  approved  by  the  examiner  in  charge. 

All  amendments  of  the  model,  drawings,  or  specification,  must 
conform  to  at  least  one  of  them  as  they  were  at  the  time  of  the  filing 
of  the  application ;  and  all  amendments  of  specifications  or  claims 
must  be  made  on  separate  sheets  of  paper  from  the  original,  and 
must  be  filed  in  the  manner  above  directed.  Even  when  the  amend- 
ment consists  in  striking  out  a  portion  of  the  specification,  or  other 
paper,  the  same  course  should  be  observed.  No  erasure  must  be 
made.  The  papers  must  remain  forever  just  as  they  were  when 
filed,  so  that  a  true  history  of  all  that  has  been  done  in  the  case 
may  be  gathered  from  them. 

The  following  are  forms  proper  to  be  observed  in  such  cases :  — 


(200.) 
Form  of  Amendtnent  of  Specification* 

"  I  hereby  amend  my  specification  by  inserting  the  following  words  aftei  the 
word  ,  in  the  line  of  the  page  thereof"  (here  should 

follow  the  words  tb,at  are  to  be  inserted)  ;  or,  "  I  hereby  amend  my  specification  by 
striking  out  the  line  of  the  page  thereof; "  or,  "  by  striking  out  the 

first  and  fourth  clauses  of  the  claim  appended  thereto  ;  "  or  whatever  may  be  the 
amendment  desired  by  the  applicant. 

In  each  case,  the  exact  word  to  be  stricken  out  or  inserted  should 
be  clearly  described,  and  the  precise  point  indicated  where  any 
insertion  is  to  be  made. 

The  office  will,  in  no  case,  return  specifications  for  amend- 
ment ;  nor  will  any  person  whatever  be  allowed  to  take  any  pa- 
pers, models,  or  samples  from  the  office.  If  applicants  have  not 
preserved  copies  of  such  papers  as  they  wish  to  amend,  the  office 
will  furnish  them  on  the  usual  terms.  No  application  will  be  sus- 
pended merely  because  the  applicant  may  refuse  to  amend  as  rc- 

39 


5&8  THE  LAW  OF  PATENTS. 

» 

quested  or  advised  by  an  examiner  in  charge  ;  but  in  such  case  the 
application  must  be  examined  on  its  merits,  as  presented,  and 
allowed  or  rejected,  so  that  the  inventor  may  take  an  appeal  if  the 
decision  should  be  adverse. 

Placing  the  affidavit  of  the  applicant  on  one  piece  of  paper  and 
the  specification  on  another,  so  that  both  may  be  detached  and  ap- 
plied to  other  papers,  will  be  looked  upon  with  suspicion,  and  any 
such  substitution  will  be  carefully  guarded  against.  No  specifica- 
tion will  be  received  unless  the  sheets  are  attached  together,  or 
unless  the  officer  who  administers  the  oath  has  subscribed  his  name 
upon  each  separate  sheet  of  paper,  so  as  to  show  that  the  specifica- 
tion presented  is  the  same  that  was  subscribed  and  sworn  to. 

Trade-marks. 

The  statute  of  July  8,  1870,  provides  not  only  for  patents  and 
copyrights,  but  for  trade-marks.  The  following  are  the  important 
sections  which  relate  to  this  subject:  — 

SECT.  77.  And  be  it  further  enacted,  That  any  person  or  firm  domi- 
ciled in  the  United  States,  and  any  corporation  created  by  the  au- 
thority of  the  United  States,  or  of  any  State  or  Territory  thereof, 
and  any  person,  firm,  or  corporation  resident  of  or  located  in  any 
foreign  country  which  by  treaty  or  convention  affords  similar  privi- 
leges to  citizens  of  the  United  States,  and  who  are  entitled  to  the 
exclusive  use  of  any  lawful  trade-mark,  or  who  intend  to  adopt  and 
use  any  trade-mark  for  exclusive  use  -within  the  United  States,  may 
obtain  protection  for  such  lawful  trade-mark  by  complying  with  the 
following  requirements  :  to  wit,— 

First,  By  causing  to  be  recorded  in  the  patent  office  the  names 
of  the  parties,  and  their  residences  and  place  of  business,  who  desire 
the  protection  of  the  trade-mark. 

Second,  The  class  of  merchandise  and  the  particular  description 
of  goods  comprised  in  such  class,  by  which  the  trade-mark  has  been 
•or  is  intended  to  be  appropriated. 

Third,  A  description  of  the  trade-mark  itself,  with  facsimiles 
thereof,  and  the  mode  in  which  it  has  been  or  is  intended  to  be  ap- 
plied and  used. 


TEADE-MARKS.  589 

Fourth,  The  length  of  time,  if  any,  during  which  the  trade-mark 
has  been  used. 

Fifth,  The  payment  of  a  fee  of  twenty-five  dollars,  in  the  same 
manner  and  for  the  same  purpose  as  the  fee  required  for  patents. 

Sixth,  The  compliance  with  such  regulations  as  may  be  pre- 
scribed by  the  Commissioner  of  Patents. 

Seventh,  The  filing  of  a  declaration,  under  the  oath  of  the  per- 
son, or  of  some  member  of  the  firm,  or  officer  of  the  corporation,  to 
the  effect  that  the  party  claiming  protection  for  the  trade-mark  has 
a  right  to  the  use  of  the'same,  and  that  no  other  person,  firm,  or  cor- 
poration has  the  right  to  such  use,  either  in  the  identical  form,  or 
having  such  near  resemblance  thereto  as  might  be  calculated  to 
deceive  ;  and  that  the  description  and  facsimiles  presented  for  record 
are  true  copies  of  the  trade-mark  sought  to  be  protected. 

SECT.  78.  And  be  it  further  enacted,  Thai  such  trade-mark  shall 
remain  in  force  for  thirty  years  from  the  date  of  such  registration, 
except  in  cases  where  such  trade-mark  is  claimed  for  and  applied  to 
articles  not  manufactured  in  this  country,  and  in  which  it  receives 
protection  under  the  laws  of  any  foreign  country  for  a  shorter  period  ; 
in  which  case  it  shall  cease  to  have  any  force  in  this  country  by 
virtue  of  this  Act  at  the  same  time  that  it  becomes  of  no  effect  else- 
where ;  and  during' the  period  that  it  remains  in  force  it  shall  entitle 
the  person,  firm,  or  corporation  registering  the  same  to  the  exclusive 
use  thereof  so  far  as  regards  the  description  of  goods  to  which  it  is 
appropriated  in  the  statement  filed  under  oatli  as  aforesaid ;  and  no 
other  person  shall  lawfully  use  the  same  trade-mark,  or  substantially 
the  same,  or  so  nearly  resembling  it  as  to  be  calculated  to  deceive, 
upon  substantially  the  same  description  of  goods :  Provided,  That, 
six  months  prior  to  the  expiration  of  said  term  of  thirty  years,  ap- 
plication may  be  made  for  a  renewal  of  such  registration,  under 
regulations  to  be  prescribed  by  the  Commissioner  of  Patents,  and 
the  fee  for  such  renewal  shall  be  the  same  as  for  the  original  regis- 
tration ;  certificate  of  such  renewal  shall  be  issued  in  the  same 
manner  as  for  the  original  registration,  and  such  trade-mark  shall 
remain  in  force  for  a  further  term  of  thirty  years :  And  provided 
further,  That  nothing  in  this  section  shall  be  construed  by  any 
court  as  abridging,  or  in  any  manner  affecting  unfavorably,  the  claim 


590  THE  LAW  OF  PATENTS. 

of  any  person,  firm,  corporation,  or  company,  to  any  trade-mark 
after  the  expiration  of  the  term  for  which  such  trade-mark  was 
registered. 

SECT.  79.  And  be  it  further  enacted,  That  any  person  or  corpora- 
tion who  shall  reproduce,  counterfeit,  copy,  or  imitate  any  such  re- 
corded trade-mark,  and  affix  the  same  to  goods  of  substantially  the 
same  descriptive  properties  and  qualities  as  those  referred  to  in  the 
registration,  shall  be  liable  to  an  action  in  the  case  for  damages  for 
such  wrongful  use  of  said  trade-mark,  at  the  suit  of  the  owner 
thereof,  in  any  court  of  competent  jurisdiction  in  the  United  States  ; 
and  the  party  aggrieved  shall  also  have  his.  remedy  according  to  the 
course  of  equity  to  enjoin  the  wrongful  use  of  his  trade-mark,  and 
to  recover  compensation  therefor  in  any  court  having  jurisdiction 
over  the  person  guilty  of  such  wrongful  use.  The  Commissioner  of 
Patents  shall  not  receive  and  record  any  proposed  trade-mark  which 
is  not  and  can  not  become  a  lawful  trade-mark,  or  which  is  merely  the 
name  of  a  person,  firm,  or  corporation  only,  unaccompanied  by  a 
mark  sufficient  to  distinguish  it  from  the  same  name  when  used  by 
other  persons,  or  which  is  identical  with  a  trade-mark  appropriate 
to  the  same  class  of  merchandise,  and  belonging  to  a  different  owner, 
and  already  registered,  or  received  for  registration,  or  which  so 
nearly  resembles  such  last-mentioned  trade-mark  as  to  be  likely  to 
deceive  the  public :  Provided,  That  this  section  shall  not  prevent 
the  registry  of  any  lawful  trade-mark  rightfully  used  at  the  time  of 
the  passage  of  this  Act. 

SECT.  80.  And  be  it  further  enacted,  That  the  time  of  the  receipt 
of  any  trade-mark  at  the  patent  office  for  registration  shall  be  noted 
and  recorded  ;  and  copies  of  the  trade-mark,  and  of  the  date  of  the 
receipt  thereof,  and  of  the  statement  filed  therewith,  under  the  seal 
of  the  patent  office,  certified  by  the  commissioner,  shall  be  evidence 
in  any  suit  in  which  such  trade-mark  shall  be  brought  in  contro- 
versy. 

The  sections  81,  82,  83,  and  84,  authorize  the  commissioner  to 
make  rules,  <fcc,  relating  to  the  transfer  of  trade-marks ;  prohibit 
the  obtaining  of  trade-marks  fraudulently;  save  to  every  one  any 
remedy  he  has  now  for  the  fraudulent  use  of  his  trade-mark ; 
and  provide  that  no  trade-mark  shall  be  issued  in  any  unlawful  or 


WHAT  MAY   BE  THE   SUBJECT  OF  COPYRIGHT.  591 

injurious   business,  or  if  it  be  sought  for  purposes  of  fraud  or 
deception. 


The  interests  of  inventors  and  of  the  public,  and  the  proper  trans- 
action of  the  immense  and  complicated  business  of  the  patent  office, 
absolutely  require  it  should  be  governed  by  rules ;  and  most  of 
them  are  rigidly  adhered  to.  The  statements,  rules,  and  forms 
above  given  are  substantially  the  same  as  those  prepared  by  the 
Commissioner  of  Patents  for  the  information  and  guidance  of  ap- 
plicants. The  experience  of  the  author  of  this  book  authorizes  him 
to  say  that  all  who  deal  with  any  of  the  officers  of  the  patent  office 
will  meet  with  kindness  and  courtesy,  and  as  much  indulgence  and 
assistance  as  the  business  and  the  rules  of  the  office  permit. 


CHAPTER  XXXIV. 

THE    ILA.W    OF    COPYRIGHT. 

AN  Act  of  Congress,  approved  July  8,  1870,  makes  many  changes 
in  the  law  of  copyright.  It  repeals  all  former  laws  on  this  subject, 
but  preserves  all  rights  existing  under  those  laws.  As  this  act  is 
closely  condensed,  and  every  part  of  it  is  material,  we  give  all  the 
sections  which  relate  to  copyright,  except  the  last,  which  is  only  a 
repealing  section. 

SECTION  85.  And  be  it  further  enacted,  That  all  records  and  other 
things  relating  to  copyrights,  and  required  by  law  to  be  preserved,  shall  be 
under  the  control  of  the  librarian  of  Congress,  and  kept  and  preserved  in 
the  library  of  Congress ;  and  the  librarian  of  Congress  shall  have  the 
immediate  care  and  supervision  thereof,  and,  under  the  supervision  of  the 
Joint  Committee  of  Congress  on  the  Library,  shall  perform  all  acts  and 
duties  required  by  faw  touching  copyrights.  The  librarian  shall  cause  a 
seal  to  be  provided  for  said  office,  with  such  device  as  the  Joint  Committee 
on  the  Librarj'  may  approve,  with  which  all  records  or  papers  issued  from 
said  office,  and  to  be  used  in  evidence,  shall  be  authenticated.  lie  shall 
also  give  an  additional  bond,  with  sureties,  to  the  treasurer  of  the  United 
States,  in  the  sum  of  five  thousand  dollars,  with  the  condition  that  he  will 


592  THE  LAW  OF   COPYRIGHT. 

render  to  the  proper  officers  of  the  treasury  a  true  account  of  all  moneys 
received  by  virtue  of  his  office.  He  shall  also  make  an  annual  report  to 
Congress  of  the  number  and  description  of  copyright  publications  for 
which  entries  have  been  made  during  the  year.  And  the  librarian  of 
Congress  shall  receive  a  yearly  compensation  of  four  thousand  dollars,  to 
commence  when  this  Act  shall  take  effect. 

SECT.  86.  And  be  it  further  enacted.  That  any  citizen  of  the  United 
States,  or  resident  therein,  who  shall  be  the  author,  inventor,  designer,  or 
proprietor  of  any  book,  map,  chart,  dramatic  or  musical  composition,  en- 
graving, cut,  print,  or  photograph,  or  negative  thereof,  or  of  a  painting, 
drawing,  chromo,  statue,  statuary,  and  of  models  or  designs  intended  to  be 
perfected  as  works  of  the  fine  arts,  and  his  executors,  administrators,  or 
assigns,  shall,  upon  complying  with  the  provisions  of  this  Act,  have  the  sole 
liberty  of  printing,  reprinting,  publishing,  completing,  copying,  executing, 
finishing,  and  vending  the  same,  and,  in  the  case  of  a  dramatic  composi- 
tion, of  publicly  performing  or  representing  it,  or  causing  it  to~be  per- 
formed or  represented  by  others ;  and  authors  may  reserve  the  right  to 
dramatize  or  to  translate  their  own  works. 

SECT.  87.  And  belt  further  enacted,  That  copyrights  shall  be  granted 
for  the  term  of  twenty-eight  years  from  the  time  of  recording  the  title 
thereof  in  the  manner  hereinafter  directed. 

SECT.  88.  And  be  it  further  cnacfed,  That  the  author,  inventor,  or  de- 
signer, if  he  be  still  living  and  a  citizen  of  the  United  States,  or  resident 
therein,  or  his  widow  or  children  if  he  be  dead,  shall  have  the  same  exclu- 
sive right  continued  for  the  further  term  of  fourteen  years,  upon  recording 
the  title  of  the  work,  or  description  of  the  article,  so  secured,  a  second  time, 
and  complying  with  all  other  regulations  in  regard  to  original  copyrights, 
within  six  months  before  the  expiration  of  the  first  term.  And  such  per- 
son shall,  within  two  months  from  the  date  of  said  renewal,  cause  a  copy 
of  the  record  thereof  to  be  published  in  one  or  more  newspapers  printed  in 
the  United  States,  for  the  space  of  four  weeks. 

SECT.  89.  And  be  it  further  enacted,  That  copyrights  shall  be  assigna- 
ble in  law  by  any  instrument  of  writing ;  and  such  assignment  shall  be  re- 
corded in.  the  office  of  the  librarian  of  Congress  within  sixty  days  after  its 
execution,  in  default  of  which  it  shall  be  void,  as  against  any  subsequent 
purchaser  or  mortgagee,  for  a  valuable  consideration,  without  notice. 

SECT.  90.  And  be  it  further  enacted,  That  no  person  shall  be  entitled 
to  a  copyright,  unless  he  shall,  before  publication,  deposit  in  the  mail  a 
printed  copy  of  the  title  of  the  book  or  other  article,  or  a  description  of  the 
painting,  drawing,  chromo,  statue,  statuary,  or  model  or  design  for  a  work 
of  the  fine  arts,  for  which  he  desires  a  copyright,  addressed  to  'the  li- 
brarian of  Congress,  and,  within  ten  days  from  the  publication  thereof,  de- 
posit in  the  mail  two  copies  of  such  copyright  book  or  other  article,  or  in 
case  of  a  painting,  drawing,  statue,  statuary,  model,  or  design  for  a  work 
of  the  fine  arts,  a  photograph  of  the  same,  to  be  addressed  to  said  li- 
brarian of  Congress,  as  hereinafter  to  be  provided. 

SECT.  91.  And  be  it  further  enacted.  That  the  librarian  of  Congress 
shall  record  the  name  of  such  copyright  book  or  other  article,  forthwith  in 


THE  LAW  OF  COPYRIGHT.  593 

a  book  to  be  kept  for  that  purpose,  in  the  words  following :  "  Library  of 
Congress ;  to  wit,  Be  it  remembered,  that  on  the day  of ,  an- 
no Domini ,  A.  B.,  of ,  hath  deposited  in  this  office  the  title  of 

a  book  (map,  chart,  or  otherwise,  as  the  case  may  be,  or  description  of  the 
article),  the  title  or  description  of  which  is  in  the  following  words ;  to  wifc 
(here  insert  the  title  or  description),  the  right  whereof  he  claims  as  au- 
thor, originator  (or  proprietor,  as  the  case  may  be),  in  conformity  with  the 
laws  of  the  United  States  respecting  copyrights.  C.  D.,  Librarian  of  Con- 
gress." And  he  shall  give  copy  of  the  title  or  description,  under  the  seal 
of  the  librarian  of  Congress,  to  said  proprietor,  whenever  he  shall  re- 
quire it. 

SECT.  92.  And  be  it  further  enacted,  That,  for  recording  the  title  or  de- 
scription of  any  copyright  book  or  other  article,  the  librarian  of  Congress 
shall  receive  from  the  person  claiming  the  same,  fifty  cents ;  and  for  every 
copy  under  seal,  actually  given  to  such  person,  or  his  assigns,  fifty  cents ; 
and  for  recording  any  instrument  of  writing  for  the  assignment  of  a  copy- 
right, fifteen  cents  for  every  one  hundred  words ;  and  for  every  copy  there- 
of, ten  cents  for  every  one  hundred  words  ;  which  moneys  so  received,  shall 
be  paid  into  the  treasury  of  the  United  States. 

SECT.  93.  And  be  it  further  enacted,  That  the  proprietor  of  every  copy- 
right book  or  other  article  shall  mail  to  the  librarian  of  Congress  at 
Washington,  within  ten  days  after  its  publication,  two  complete  printed 
copies  thereof,  of  the  best  edition  issued,  or  description  or  photograph  of 
such  article  as  hereinbefore  required,  and  a  copy  of  every  subsequent  edi- 
tion wherein  any  substantial  changes  shall  be  made. 

SECT.  94.  And  be  it  further  enacted,  That,  in  default  of  such  deposit  in 
the  post  office,  said  proprietor  shall  be  liable  to  a  penalty  of  twenty-five 
dollars,  to  be  collected  by  the  librarian  of  Congress,  in  the  name  of  the 
United  States,  in  an  action  of  debt  in  any  district  court  of  the  United 
States  within  the  jurisdiction  of  which  the  delinquent  may  reside,  or  be 
found. 

SECT.  95.  And  be  it  further  enacted,  That  any  such  copyright  book  or 
other  article  may  be  sent  to  the  librarian  of  Congress  by  mail,  free  of 
postage,  provided  the  words  "copyright  matter"  are  plainly  written  or 
printed  on  the  outside  of  the  package  containing  the  same. 

SECT.  96.  And  be  it  further  enacted,  That  the  postmaster  to  whom  such 
copyright  book,  title,  or  other  article  is  delivered,  shall,  if  requested,  give  a 
receipt  therefor ;  and,  when  so  delivered,  he  shall  mail  it  to  its  destination 
without  cost  to  the  proprietor. 

SECT.  97.  And  be  it  further  enacted,  That  no  person  shall  maintain  an 
action  for  the  infringement  of  his  copyright,  unless'  he  shall  give  notice 
thereof  by  inserting  in  the  several  copies  of  every  edition  published,  on  the 
titlepage  or  the  page  immediately  following,  if  it  be  a  book  ;  or  if  a  map, 
chart,  musical  composition,  print,  cut,  engraving,  photograph,  painting, 
drawing,  chromo,  statue,  statuary,  or  model  or  design  intended  to  be  pre- 
fected  and  completed  as  a  work  of  the  fine  arts,  by  inscribing  upon  some 
portion  of  the  face  or  front  thereof,  or  on  the  face  of  the  substance  on 
which  the  same  shall  be  mounted,  the  following  words :  viz.,  "  Entered,  ac- 


594  THE  LAW  OF  COPYRIGHT. 

cording  to  Act  of  Congress,  in  the  year  — : — ,  by.  A.  B.;  in  the  Office  of  the 
Librarian  of  Congress,  at  Washington." 

SECT.  98.  And  be  it  further  enacted,  That  if  any  person  shall  insert  or 
impress  such  notice,  or  words  of  the  same  purport,  in  or  upon  any  book, 
map,  chart,  musical  composition,  print,  cut,  engraving,  or  photograph,  or 
other  articles  herein  named,  for  which  he  has  not  obtained  a  copyright, 
every  person  so  offending  shall  forfeit  and  pay  one  hundred  dollars ;  one 
moiety  thereof  to  the  person  who  shall  sue  for  the  same,  and  the  other  to 
the  use  of  the  United  States,  to  be  recovered  by  action  in  any  court  of 
competent  jurisdiction. 

SECT.  99.  And  be  it  further  enacted,  That  if  any  person,  after  the  re- 
cording of  the  title  of  any  book  as  herein  provided,  shall,  within  the  term 
limited,  and  without  the  consent  of  the  proprietor  of  the  copyright  first 
obtained  in  writing,  signed  in  presence  of  two  or  more  witnesses,  print, 
publish,  or  import,  or  knowing  the  same  to  be  so  printed,  published,  or  im- 
ported, shall  sell,  or  expose  to  sale,  any  copy  of  such  book,  such  offender 
shall  forfeit  every  copy  thereof  to  said  proprietor,  and  shall  also  forfeit  and 
pay  such  damages  as  may  be  recovered  in  a  civil  action  by  such  proprietor 
in  any  court  of  competent  jurisdiction. 

SECT.  100.  And  be  it  further,  enacted,  That  if  any  person,  after  the  re- 
cording of  the  title  of  any  map,  chart,  musical  composition,  print,  cut,  en- 
graving, or  photograph,  or  chromo,  or  of  the  description  of  any  painting, 
drawing,  statue,  statuary,  or  model  or  design  intended  to  be  perfected  and 
executed  as  a  work  of  the  fine  arts,  as  herein  provided,  shall  within  the 
term  limited,  and  without  the  consent  of  the  proprietor  of  the  copyright, 
first  obtained  in  writing,  signed  in  presence  of  two  or  more  witnesses,  en- 
grave, etch,  work,  copy,  print,  publish,  or  import,  either  in  whole  or  in  part, 
or  by  varying  the  main  design  with  intent  to  evade  the  law,  or  knowing 
the  same  to  be  so  printed,  published,  or  imported,  shall  sell,  or  expose  to  sale, 
any  copy  of  such  map  or  other  article,  as  aforesaid,  he  shall  forfeit  to  the 
said  proprietor  all  the  plates  on  which  the  same  shall  be  copied,  and  every 
sheet  thereof  either  copied  or  printed,  and  shall  further  forfeit  one  dollar 
for  every  sheet  of  the  same  found  in  his  possession,  either  printing,  print- 
ed, copied,  published,  imported,  or  exposed  for  sale ;  and  in  case  of  a  paint- 
ing, statue,  or  statuary,  he  shall  forfeit  ten  dollars  for  every  copy  of  the 
same  in  his- possession,  or  which  have  by  him  been  sold,  or  exposed  for  sale  ; 
one  moiety  thereof  to  the  proprietor,  and  the  other  to  the  use  of  the  United 
States,  to  be  recovered  by  action  in  any  court  of  competent  jurisdiction. 

SECT.  101.  And  be  it  further  enacted,  That  any  person  publicly  perform- 
ing or  representing  any  dramatic  composition  for  which  a  copyright  has 
been  obtained,  without  the  consent  of  the  proprietor  thereof,  or  his  heirs  or 
assigns,  shall  be  liable  for  damages  therefor,  to  be  recovered  by  action  in 
any  court  of  competent  jurisdiction ;  said  damages,  in  all  cases,  to  be  as- 
sessed at  such  sum,  (not  less  than  one  hundred  dollars  for  the  first,  and  fifty 
dollars  for  every  subsequent  performance,)  as  to  the  court  shall  appear  to  be 
just. 

SECT.  102.  And  be  it  further  enacted,  That  any  person  who  shall  print 
or  publish  any  manuscript  whatever,  without  the  consent  of  the  author  or 


THE  LAW  OF  COPYRIGHT.  595 

proprietor  first  obtained  (if  such  author  or  proprietor  be  a  citizen  of  the 
United  States,  or  resident  therein),  shall  be  liable  to  said  author  or  propri- 
etor for  all  damages  occasioned  by  such  injury,  to  be  recovered  by  action 
on  the  case  in  any  court  of  competent  jurisdiction. 

SECT.  103.  And  be  it  further  enacted,  That  nothing  herein  contained 
shall  be  construed  to  prohibit  the  printing,  publishing,  importation,  or  sale 
of  any  book,  map,  chart,  dramatic  or  musical  composition,  print,  cut,  en- 
graving, or  photograpb,  written,  composed,  or  made  by  any  person  not  a 
citizen  of  the  United  States,  nor  resident  therein. 

SECT.  104.  And  be  it  further  enacted,  That  no  action  shall  be  main- 
tained in  any  case  of  forfeiture  or  penalty  under  the  copyright  laws,  unless 
the  same  is  commenced  within  two  years  after  the  cause  of  action  has 
arisen. 

SECT.  105.  A.nd  be  it  further  enacted,  That,  in  all  actions  arising  under 
the  laws  respecting  copyrights,  the  defendant  may  plead  the  general  issue, 
and  give  the  special  matter  in  evidence. 

SECT.  106.  And  be  it  further  enacted,  That  all  actions,  suits,  controver- 
sies, and  cases  arising  under  the  copyright  laws  of  the  United  States,  shall 
be  originally  cognizable,  as  well  in  equity  as  at  law,  whether  civil  or  penal 
in  their  nature,  by  the  circuit  courts  of  the  United  States,  or  any  district 
court  having  the  jurisdiction  of  a  circuit  court,  or  in  the  supreme  court  of 
the  District  of  Columbia,  or  any  Territory.  And  the  court  shall  have 
power,  upon  bill  in  equity  filed  by  any  party  aggrieved,  to  grant  injunc- 
tions to  prevent  the  violation  of  any  right  secured  by  said  laws,  according 
to  the  course  and  principles  of  courts  of  equity,  on  such  terms  as  the  court 
may  deem  reasonable. 

SECT.  107.  And  be  it  further  enacted,  That  a  writ  of  error  or  appeal  to 
the  Supreme  Court  of  the  United  States  shall  lie  from  all  judgments  and 
decrees  of  any  court,  in  any  action,  suit,  controversy,  or  case  touching  copy- 
rights, in  the  same  manner,  and*  under  the  same  circumstances,  as  in  other 
judgments  and  decrees  of  such  courts,  without  regard  to  the  sum  or  value 
in  controversy. 

SECT.  108.  And  be  it  further  enacted,  That  in  all  recoveries  under  the 
copyright  laws,  either  for  damages,  forfeitures,  or  penalties,  full  costs  shall 
be  allowed  thereon. 

SECT.  109.  And  be  it  further  enacted,  That  all  books,  maps,  charts,  and 
other  publications  of  every  nature  whatever,  heretofore  deposited  in  the 
Department  of  the  Interior,  according  to  the  laws  regulating  copyrights, 
together  with  all  the  records  of  said  department,  and  all  records  concerning 
the  same  which  were  removed  by  the  Department  of  the  Interior  from  the 
Department  of  State,  shall  be  removed  to  and  be  under  the  control  of  the 
librarian  of  Congress,  who  is  hereby  charged  with  all  the  duties  pertain- 
ing to  copyrights  required  by  law. 

SECT.  110.  And  be  it  further  enacted,  That  the  clerk  of  each  of  the  dis- 
trict courts  of  the  United  States  shall  transmit  forthwith  to  the  librarian 
of  Congress,  all  books,  maps,  prints,  photographs,  music,  and  other  publi- 
cations of  every  nature  whatever  deposited  in  said  clerk's  office,  and  not 
heretofore  sent  to  the  Department  of  the  Interior  at  Washington,  together 


596  THE  LAW  OF  COPYRIGHT. 

with  the  records  of  copyright  in  his  possession,  including  the  titles  so  re- 
corded and  the  dates  of  record.  Provided,  That  where  there  are  duplicate 
copies  of  legal,  scientific,  or  mechanical  works,  one  copy  of  each  may  be 
deposited  in  the  library  of  the  patent  office,  for  which  a  receipt  shall  be 
given  by  the  commissioner  of  patents  to  the  librarian  of  Congress. 

I  subjoin  two  forms  of  agreement  between  authors  holding  copy- 
rights, with  publishers,  for  the  publication  of  the  book.  Every  such 
agreement  must  express  the  particular  terms  of  that  bargain  ;  but 
the  following  may  serve  as  general  guides.  I  add  a  form  of  assign- 
ment of  copyright :  — 

(201.) 
Agreement  between  Author  and  PublisJier :  short  Form. 

This  agreement,  made  this  day  of  in  the  year 

18         ,  by  and  between  (name  of  author)  and  (name  ofpub'ishcr) 

\vitnessetli  as  follows : 

The  said  (name  of  author)  being  now  preparing  a  work,  to  be  called 

(or  on  the  subject  of  )  to  be  in 

volume  ,  hereby  agrees  and  promises  to  complete  the  same  for  the  press  as  rapid- 
ly as  practicable,  and  to  sell  to  the  same  (name  of  the  publisher)  for  the  sum 
of  dollars,  to  be  paid  as  hereinafter  mentioned,  the  exclusive 
right  of  printing,  publishing,  and  selling  the  first  edition  thereof,  to  consist  of 
copies.  The  copyright  of  said  work  to  be  secured  and  retained 
by  said  (name  of  author)  as  author  and  proprietor. 

And  the  said  (name  of  publisher)  hereby  agrees  and  promises  to  publish 

said  edition  of  copies,  and  to  pay  to  said  (name  of  author) 

the  said  sum  of  dollars,  by  their  promissory,  negotiable  notes, 

payable  at  average  credit  of  months  from  the  day  of  publication  of 

said  edition ;  and  also  to  give  him  copies  of  said  work,  for  presentation. 

"Witness  Our  hands,  in  duplicate,  this  day  of 

(Signature  of  author.) 
(Signature  of  publisher.) 

(202.) 
Agreement  between  Author  and  Publishers  :  fuller  Form. 

Articles  of  Agreement,  Made  this  day  of 

A.D.  186       by  and  between  of  the  first  part,  and 

of                           State  of  booksellers 

and  publishers,  of  the  second  part,  witnesseth,  That  the  said           (name  of  the 


AGBEEMENT  BETWEEN  AUTHOR  AND  PUBLISHER          597 

author)  in  consideration  of  the  agreements  of  the  said  (name  of  publishers') 

hereinafter  contained,  hereby  agrees  with  them  and  their  representatives  and 
assigns  that  he  will  deliver  to  them  on  or  before  the  day  of 

A.D.  186  the  manuscript  of  a  book  now  in  course  of  preparation  by  him,  to  be 
entitled  said  manuscript  to  be  properly  prepared  for  the 

press,  and  to  be  sufficient  in  amount  for  volume    of  not  less  than 

pages,  similar  to  those  of 

that  he  will  secure  in  his  own  name  a  good  and  valid  copyright  thereof  for  the 
United  States,  and  any  renewals  or  extensions  of  such  copyright  to  which  he  may 
hereafter  be  entitled,  and  will  defend  the  same  from  all  infringements  and  adverse 
claims,  and  will  save  the  said  and  their  representatives  and 

assigns  harmless  and  indemnified  from  all  such  infringements  and  claims,  and  from 
all  damage,  costs,  and  expenses  arising  to  them  by  reason  thereof;  that  he  will 
license  and  allow  the  said  and  their  representatives  and 

assigns,  but  no  other  party  or  parties,  to  print,  publish,  and  sell  the  aforesaid  book, 
and  any  revisions  of  the  same,  during  the  continuance  of  any  copyrights  or  re- 
newals thereof  which  he  may  obtain  therefor ;  provided,  however,  that  the  said 
and  their  representatives  and  assigns,  shall  in  substantial 

good  faith  keep  and  perform  their  agreements  hereinafter  contained ;  and  that, 
during  the  continuance  of  the  exclusive  rights  hereby  granted,  he  will  revise 
said  book  as  occasion  may  require,  and  will  with  all  reasonable  diligence  and 
speed  superintend  in  the  usual  manner  of  authors  the  printing  of  all  editions 
thereof;  and  will  not  prepare,  edit,  or  cause  to  be  published  in  his  name  or  other- 
wise, any  thing  which  may  injure  or  interfere  with  the  sale  of  the  aforesaid  book. 

And  the  said  (name  of  the  publishers)  in  consideration  of  the  foregoing 

agreements  of  the  said  author  of  the  aforesaid  book,  hereby  agree  on  their  part 
that  they  will,  upon  the  delivery  to  them  of  the  manuscript  thereof  as  aforesaid, 
proceed  at  once  to  print  and  publish  an  edition  of  said  book,  of  at  least 

copies,  of  wliich  they  will  deliver  to  the  said 

author  for  his  own  use  without  charge ;  that  they  will  subsequently,  from  time  to 
time,  during  the  continuance  of  their  enjoyment  of  the  exclusive  rights  herein 
granted  them,  print  and  publish  such  other  editions  of  said  book  as  the  demand  for 
the  same  may  require,  copies  of  each  of  which  they  will 

deliver  to  said  author  for  his  own  use  without  charge ;  that  they  will  use  their  best 
exertions  to  secure  the  speedy  sale  of  all  such  editions  published  by  them  as 
aforesaid ;  and  that,  upon  the  publication  of  each  and  every  edition  of  said  book, 
they  will  pay  unto  the  said  author,  or  his  representatives  or  assigns,  a  sum  equal 
to  upon  each  and  every  copy  of  which  said  edition  shall 

consist  (excepting,  however,  said  copies  to  be  given  to  said  author  as  aforesaid,  and 
such  other  copies  as  may  be  used  for  presentation  to  editors  and  others  for  the  pur- 
jose  of  obtaining  reviews  and  notices,  or  otherwise  to  promote  the  sale  of  said 
book),  which  said  sum  shall  be  paid  as  follows  (state  the  manner  and  times  of  pay- 
wen!  as  by  cash  or  notes) 

but  from  any  sura  so  to  be  paid  as  aforesaid  shall  first  be 


598  THE  LAW  OF  COPYRIGHT. 

deducted  the  cost  of  any  alterations  or  corrections,  exceeding  ten  per  cent  of  the 
cost  of  first  setting  up  the  type,  made  by  the  said  author  in  said  book  after  tht. 
portion  altered  or  corrected  is  in  type. 

In  Witness  Whereof,  The  said  parties  have  hereto,  and  to  another  instru 
ment  of  like  tenor,  set  their  hands  the  day  and  year  first  above  written. 

(Signature  of  author.) 

(Signature  of  publishers.} 
(Witnesses.") 


(203.) 
An  Assignment  of  a  Copyright. 

To  all  whom  it  may  Concern :  Whereas  I  (name  of  assignor) 

of  in  the  County  of  and  State  of 

did  obtain  a  copyright  from  the  United  States  for  a  work  entitled 
and  the  certificate  of  said  copyright  bears  date  A.D.  eighteen 

hundred  and 

Now  this   Deed  "Witnesseth,    That  for  a  valuable  consideration,  viz. 
to  me  in  hand  paid,  the  receipt  of  which  is  hereby  acknowledged, 
I  have  assigned,  sold,  and  set  over,  and  by  these  presents  do  assign,  sell,  and  set 
over  unto  the  said  (name  of  assignee)  all  the  right,  title,  and  interest  I  have 

in  the  above  book  (or  design,  §*c.)  as  secured  to  me  by  said  copyright  The  same 
to  be  held  and  enjoyed  by  the  said  (name  of  assignee)  for  his  own  use  and 

behoof,  and  for  the  use  and  behoof  of  his  legal  representatives,  to  the  full  end  of 
the  term  for  which  said  copyright  was  issued,  as  fully  and  entirely  as  the  same 
would  have  been  held  and  enjoyed  by  me  had  this  assignment  and  sale  not  been 
made. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal  this  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

(Signature.)     (Seal.) 

Sealed  and  Delivered  in  Presence  of 


RECOVERY  AND  COLLECTION  OF  DEBTS.  599 


CHAPTER   XXXV. 

BTFSATVQ     I»ROVH>Er>     FOR     THE     RECOVERY    AJVI> 
COLLECTION    OF    I>E:BTS. 

1,  Arrest  and  Imprisonment,  —  In  eight  States,  no  person  can 
bo  arrested  or  imprisoned  for  debt.     These  are  Virginia,  Maryland, 
North    Carolina,   Mississippi,   Florida,   Wisconsin,   Arkansas,   and 
Texas.     In  California  no  female,  and  in  Louisiana  no  female,  and 
no  person  who  has  not  a  doniicil  in  the  State,  .and  in  Ohio  no  female 
nor  any  officer  or  soldier  of  the  Revolutionary  army,  can  be  arrested 
or  imprisoned  for  debt.    In  all  the  States,  the  intention  of  the  law 
is  to  limit  imprisonment  to  those  cases  in  which  either  fraud  was 
committed  in  the  contraction  of  the  debt,  or  the  debtor  intends  to 
abscond  out  of  the  reach  of  process.    The  provisions  to  effect  this  are 
very  various.     Generally,  the  plaintiff  must  file  in  the  clerk's  office, 
or  indorse  upon  the  writ,  an  affidavit  of  the  facts  on  which  he 
grounds  the  right  of  arrest.     In  some  of  the  States,  provision  is 
made  for  the  imprisonment  on  execution  of  a  debtor  who  can  be  found 
to  possess,  and  refuses  to  surrender,  property  or  interest,  real  or  per- 
sonal, which  might  be  made  available  for  the  payment  of  his  debts. 

2.  The  Trustee  Process.  —  The    trustee    process,    or   garnishee 
process,  or  process  of  foreign  attachment,  —  by  all  which  names  it  is 
known,  —  is  now  nearly  or  quite  universal.     It  is  substantially  this. 
A  owes  B  a  debt ;  but  A  has  no  property  in  his  hands  or  possession 
which  B  can  get  at ;  but  A  has  deposited  in  the  hands  of  C  goods 
or  property  or  credits  of  some  kind,  or  A  has  a  valid  claim  against 
C  for  wages  or  services,  or  money  loaned,  or  goods  sold,  or  some- 
thing else  ;  and  this  B  gets  by  suing  A,  not  with  a  common  writ, 
but  with  a  trustee  writ,  so  called,  in  which  he  declares  that  B  is  the 
trustee  of  A,  for  property,  <fec.;  and  on  this  writ,  if  B  recovers  pay 
ment  against  A,  he  will  have  an  execution  against  all  A's  property 
in  the  hands  of  C,  and  all  A's  valid  demands  against  C.     But  C, 
when  notified,  may  come  into  court,  and,  in  answer  to  all  questions 
put  to  him.  declare  that  he  (C)  has  no  property  in  his  hands  belong- 


600         RECOVERY  ASD  COLLECTION  OF  DEBTS 

ing  to  A,  and  that  lie  docs  not  owe  A  any  thing.     And  then  the 
plaintiff  may  shape  the  questions  as  he  pleases,  to  draw  out  the  truth. 

No  one  is  adjudged  trustee,  or  made  to  pay  to  the  creditor  the 
debt  due  to  the  debtor,  if  he  has  given  a  negotiable  note  for  it,  because 
he  might  have  to  pay  it  again  to  an  honest  indorsee.  Nor  if  the 
debt  is  not  certainly  due ;  nor,  generally,  if  it  is  due  from  the 
trustee  in  any  official  capacity,  which  will  require  him  to  account 
over  for  the  money  in  his  hands ;  nor  if  the  debtor  has  recovered  a 
judgment  against  the  trustee,  on  which  execution  may  issue. 

3.  The  Homestead,  —  In  most  of  the  States,  a  homestead  is 
protected  from  creditors,  and  exempted  from  all  attachment  or  ex- 
ecution, excepting  in  some  States  for  taxes,  or  wages  of  labor  to  a 
certain  amount.  In  the  Abstract  of  the  Law  of  Husband  and  Wife, 
already  given  on  pages  17  to  38,  a  brief  statement  of  the  quantities 
and  values  of  the  homesteads  exempted  from  sale  on  execution  in 
the  several  States,  is  also  given.  This  is  stated  in  that  connection, 
because  the  principal  purpose  of  these  homestead  exemptions  seems 
to  be  the  protection  of  the  wife  and  family. 

Various  provisions  are  made  in  each  of  these  States  to  combine  a 
due  protection  of  the  creditor  with  proper  prevention  of  fraud.  The 
most  common  means  are  by  requiring  that  "  the  homestead  "  should 
be  distinctly  defined  and  set  apart,  and  in  many  cases  by  the  addi- 
tional requirement,  that  the  description  and  location  of  it  should  be 
put  on  public  record. 

In  all  the  States 'there  are  also  exemption  laws.  These  provide 
very  generally  that  bed  and  bedding  and  other  necessary  furniture, 
needful  clothing,  a  Bible  and  school-books,  and  a  certain  amount  of 
food  and  fuel,  shall  not  be  taken  on  attachment  or  execution.  In 
some  States,  the  tools  of  a  trade,  the  uniform,  arms,  and  equipments 
of  soldiers  or  officers  in  the  militia,  the  family  burying-vault  and 
gravestones,  a  team  or  yoke  of  oxen,  bees  with  their  hives  and  honey, 
a  boat  for  fishing,  &c.,  are  exempted.  The  statutes  often  enumerate 
the  articles  exempted  quite  minutely,  and  then  add,  that  necessary 
articles  to  a  certain  amount  of  value,  usually  one  or  two  hundred 
dollars,  are  also  exempted. 


LIENS  OF  MECHANICS  AND  MATERIAL  MEN.  601 


CHAPTER    XXXVI. 

THE     LIE^S      OF      MECH^INTCS      AJVD      MA.TEHIAX. 
FOR    THEIR,    WA.GES    AISTD    MA.TERIAJL.S. 


IN  nearly  all  our  States  m  thero  are  now  some  provisions  for 
securing  to  mechanics,  and  to  persons  supplying  materials  (who 
are  called  "  material  men"),  their  wages  and  pay  for  their  mate- 
rials, by  means  of  liens,  as  they  are  called  in  law.  A  lien  is  a  hold 
upon  or  a  valid  claim  against  property.  This  means  that  every 
mechanic  employed  upon  a  house,  and,  in  most  of  the  States,  upon 
a  vessel,  and  in  some  upon  any  property  whatever,  as  a  railroad  or 
canal,  either  in  the  construction  or  repair  of  it,  has  a  lien  upon  the 
property  on  which  he  has  labored  or  for  which  he  has  supplied 
materials,  for  the  amount  of  his  wages  and  the  price  of  his  mate- 
rials. This  lien  or  claim  he  has  for  a  certain  time  ;  and  during  that 
time  he  may  either  sue  for  his  wages,  and  make  an  attachment  of 
the  property,  or,  in  some  States,  file  a  petition  with  the  proper 
court  ;  and  in  cither  may  have  the  property  sold  to  pay  his  wages, 
unless  the  owner  redeems  it. 

The  reason  of  these  precautions  is  obvious  enough.  The  purpose 
of  the  law  is  to  assist  and  protect  the  mechanic,  or  material  man, 
but  not  to  enable  him  to  commit  a  fraud  or  do  an  injury  to  his 
neighbors.  And  it  would  be  an  injury  to  a  man  to  let  him  buy  a  house 
and  pay  full  price  for  it,  and  then  tell  him  that  the  mechanics  who 
built  it  had  a  lien  (which  is  much  the  same  in  effect  as  a  mortgage) 
upon  the  house,  without  his  knowing  any  thing  about  it.  And  it 
would  be  an  injury  to  an  owner,  who  had  contracted  with  the 
master-workman  to  repair  or  change  his  house  at  great  expense,  to 
settle  with  this  master-workman  in  due  time,  and  pay  him  the  full 
amount  of  his  bill,  without  any  notice  to  the  owner  that  he  was 
under  an  obligation  to  pay  again  for  all  the  labor  spent  upon  his 
house,  or  let  the  house  go  on  execution. 


602  LIENS  OF  MECHANICS  AND  MATERIAL  MEN. 

Of  all  these  laws  for  the  recovery  of  debts,  and  the  enforcement 
of  the  liens  of  mechanics,  the  provisions  nSw  in  force  are  quite 
recent.  Only  of  late  years  has  imprisonment  for  debt  been  greatly 
mitigated  or  removed,  and  the  trustee  or  garnishee  process  made 
what  it  now  is,  exceedingly  convenient  and  useful.  The  homestead 
law  and  the  lien  law,  though  now  so  widely  spread,  are  a  modern 
invention,  or,  at  least,  of  modern  introduction.  The  effect  of  this 
recent  origin  is  twofold.  First,  important  practical  questions  still 
exist  as  to  their  construction,  application,  and  effect,  which  only 
time  can  solve.'  Secondly,  there  is  not  only  no  general  agreement 
as  to  their  details,  but,  to  all  appearance,  no  permanent  contentment 
with  these  details  anywhere.  The  statutes  on  these  subjects 
undergo  very  frequent  changes  of  all  degrees  of  importance,  and 
we  have  no  reasonable  assurance,  anywhere,  that  precisely  what  is 
law  to-day  will  be  law  in  the  same  place  to-morrow. 

I  have  thought  it  best,  therefore,  not  to  attempt  to  give  all  those 
statutory  provisions  of  the  several  States  in  detail.  Such  a  thing 
might  be  much  worse  than  useless  if  it  led  to  conduct  grounded  on 
a  mistaken  belief  that  the  law  of  one  time  is  just  what  it  is  at 
another.  Nothing  more  has  been  attempted,  therefore,  than  this. 
First,  to  give  a  general  and  accurate  view  of  all  those  principles  of 
the  laws  relating  to  creditor  and  debtor  which  are  now  generally 
agreed  upon,  and  may  be  regarded  as  probably  permanent. 
Secondly,  to  give  such  information  as  may  be  depended  upon,  to 
those  who  are  caught  in  an  emergency  where  they  cannot  at  once 
seek  counsel,  or  for  any  reason  will  not,  and  who  may  here  be  told, 
in  general,  how  the  law  stands  in  relation  to  them.  Thirdly,  to 
indicate  distinctly  to  the  mechanic  what  rights  he  may  possess  and 
what  securities  he  may  hold,  and  how  he  may  lose  the  rights  and 
securities  he  possesses,  and  to  the  owner  or  buyer  what  liabilities  he 
may  incur,  unless  the  one  and  the  other  take  the  proper  course 
which  the  law  has  provided  for  their  safety. 

In  the  present  state  of  the  laws  for  the  collection  of  debts  or  the 
exemption  of  property,  it  would  be  difficult  for  any  one  but  a  law- 
yer to  learn  or  state  all  the  exact  provisions  and  effects  of  these 
laws.  And  even  if  this  were  possible,  no  mechanic  would  probably 
be  willing  to  trust  to  himself  to  make  out  his  writ,  or  file  his  peti- 


FOKM  OP  NOTICE  UNDER  LIEN  LAW.  603 

tion,  to  enforce  his  claims  or  lien ;  and  any  competent  counsel  whom 
he  would  employ  for  fhis  purpose  would  be  able  to  tell  him  what 
the  law  was  at  that  very  time,  in  that  very  State,  and  on  that  precise 
question. 

^  For  these  reasons,  little  more  is  attempted  in  this  chapter,  because 
little  more  is  thought  possible,  than  to  yield  all  available  assistance 
to  debtors  or  creditors  who  have  not  the  means  or  opportunity  of 
employing  counsel,  and  of  indicating  to  those  who  can  consult  them, 
the  rights,  security,  and  safety  they  may  possess,  by  wise  advice  and 
accurate  conformity  with  the  law. 

The  forms  to  be  used  under  the  lien  laws  are  not  prescribed  by 
statute.  Those  given  below  are  in  use  in  some  of  our  principal 
cities ;  and  the  same,  in  substance,  would  be  suitable  anywhere. 


(204.) 
A  Notice  under  Mechanic's  Lien  Law. 

(To  le  filed  with  (lie  Clerk  of  the  County.') 

To  Esquire, 

Clerk  of  the  City  and  County  of 
SIR, 

Please  to  take  Notice,  That  I,  residing  at  No. 

Street,  in  have  a  claim  against  amounting  to  the 

sum  of  due  to  me,  and  that  the  claim  is  made  for  and  on  account 

of  (here  state  tie  work  or  materials)  and  that  such  work  was  done  in  pursuance  of 
(here  describe  the  contract)  which  building  is  owned  by  situated 

in  the  ward,  of  the  city  of  on  the  side  of 

Street,  and  is  known  as  No.  the  following  is  a  diagram 

of  said  premises  (or,  the  said  premises  leing  described  as  follows) 

And  that  I  have  and  claim  a  lien  upon  said  house  or  building  and  tne  appur- 
'tenances  and  lot  on  which  the  same  shall  stand  pursuant  to  the  provisions  of  an 
act  of  the  Legislature  of  the  State  of  to  secure  the  payment 

of  mechanics,  laborers,  and  persons  furnishing  materials  towards  the  erection,  alter- 
ing, or  repairing  of  buildings. 

Dated,  this  day  of  18 

(.Signature.') 
40 


604  LIENS  OF  MECHANICS  AN1;  MATEEIAL  MEN. 


COUNTY  OF 
CITY  OF 


>  88. 


(The  name  of  the  party  claiming  the  lien)  being  duly  sworn,  says,  that  he  is 
the  claimant  mentioned  in  the  foregoing  notice  of  lien,  that  he  has  read  the  said 
notice  and  knows  the  contents  thereof,  and  that  the  same  is  true  to  his  own  knowl- 
edge, except  as  to  the  matters  therein  stated  on  information  and  belief,  and  as  to 
those  matters  he  believes  it  to  be  true. 

to  before  me,  this  day  of  18 


(205.) 
A  Bill  of  Particulars  of  Mechanic's  Claim. 

(To  be  served  on  owner.') 

A  Bill  of  Particulars  Of  the  amount  claimed  to  be  due  from 
for  and  on  account  of  (work  or  materials')  and  that  such  work  was  done  (or  materi- 
als furnished)  in  pursuance  of  (state  the  contract  or  order)  which  building  is  owned 
by  situated  in  the  ward  of  the  city  of 

on  the  side  of  Street,  and  is  known  as  No. 

of  said  street. 

M 

To 
18 

(206.) 
A  Release  and  Discliarge  of  a  Mechanic's  Hen. 

I  do  Hereby  Certify,  That  a  certain  mechanic's  lien,  filed  in  the  office  of  the 
clerk  of  the  county  of  the  day  of 

one  thousand  eight  hundred  and  at 

o'clock,  in  the  noon,  in  favor  of  claimant 

against  the  b  aiding  and  lot,  situate  side  of 

street,  and  known  as  No.  iii  said  street, 

whereof  is  owner,  and  is  contractor,  is  discharged. 

ss.      On  the  day  of 

one  thousand  eight  hundred  and  before  me  came 

who  is  known  to  me  to  be  the  individual  described  in,  and  who  executed  the  abova 
certificate,  and  acknowledged  that  he  executed  the  same. 


PENSIONS.  605 

(207.)  ,• 

Release  and  Discharge  of  a  Mechanic's  Lien;  another  Form. 

"Whereas,  We,  the   subscribers,  have  erected  and  furnished  materials  for 
erecting  on  lot  or  piece  of  ground  situate 

And  have  agree^  to  release  all  liens  which  we,  or  any  or  either  of  us  have,  or«nigh6 
have,  on  the  said  by  reason  of  materials  furnished,  or  work  per 

formed,  for  erecting  the  same.  Now  these  presents  witness,  that  we,  the  subscribers, 
for  and  in  consideration  of  the  premises,  and  of  the  sum  of  one  dollar,  to  each  of  us 
at  or  before  the  sealing  and  delivery  hereof  by  the  said  well  and 

truly  paid,  the  receipt  whereof  we  do  hereby  acknowledge,  have  remised,  released, 
and  forever  quit-claimed,  and  by  these  presents  do  remise,  release,  and  forever 
quit-claim  unto  the  said  and  to  his  heirs  and  assigns,  all 

and  all  manner  of  liens,  claims,  and  demands  whatsoever,  which  we,  or  any  or  either 
of  us  now  have,  or  might  or  could  have,  on  or  against  the  said 
and  premises,  for  work  done,  or  for  materials  furnished,  for  erecting  and  construct- 
ing the  said  building,  or  otherwise  howsoever.     So  that  he  the  said 
and  his  heirs  and  assigns,  shall  and  may  have,  hold,  and  enjoy,  the  said 
and  premises,  freed  and  discharged  from  all  liens,  claims,  and  demands  whatsoever, 
which  we,  or  any  or  either  of  us,  now  have,  or  might  or  could  have,  on  or  against 
the  same,  if  these  presents  had  not  been  made. 

In  Witness  "Whereof,  we  have  hereunto  set  our  hands  and  seals  the  day 
of  the  date  written  opposite  our  respective  signatures. 
(Date.)  (  Witnesses  at  signing.')  (Signatures  of  Claimants.) 


CHAPTER    XXXVII. 


CONGRESS  has  provided  pensions  for  officers,  soldiers,  and  saibrs 
disabled  in  the  service,  and  for  the  widows  and  children  of  officers, 
soldiers,  and  sailors  who  have  died  in  the  service.  The  statutes 
are  very  carefully  drawn,  and  may  be  regarded  as  making,  on  the 
whole,  wise  and  liberal  provision. 


606  PENSIONS. 

The  officers  to  whom  application  by  officers,  soldiers,  or  sailors, 
or  their  representatives,  should  be  made  in  "Washington,  by  letter  or 
petition,  arc,  by  a  soldier  having  his  regular  discharge-paper,  to  the 
Paymaster  General ;  if  the  discharge-paper  be  lost,  to  the  second 
Auditor  of  the  Treasury;  by  those  who  claim  as  the  representatives 
of  a.deceased  person,  to  the  same  auditor ;  if  for  commutation  of 
rations,  to  the  same  auditor ;  if  for  pensions,  or  in  any  especial 
question  arising  out  of  pensions,  to  the  Commissioner  of  Pensions. 

The  officers  having  charge  of  these  matters  are  disposed  to  do 
whatever  can  be  done  for  the  benefit  and  convenience  of  applicants, 
consistently  with  a  due  protection  of  the  government  and  the 
country  against  fraud  or  mistake.  And  both  fraud  and  mistake 
are  so  easy,  that  many  precautions  and  precise  regulations  have  been 
found  necessary,  and  are  carefully  adhered  to. 

The  Commissioner  of  Pensions  has  prepared  instructions  for  all 
applicants,  military  or  naval ;  which,  being  understood  and  re- 
garded, will  prevent  all  fraud  or  misunderstanding.  They  are 
substantially  as  follows  :  — 

Instructions. 

Under  the  act  of  Congress  approved  July  14,  1862,  and  acts 
amendatory  thereof,  pensions  are  granted  to  the  following  classes  of 
persons : — 

I.  INVALIDS,  disabled  since  March  4,  18G1,  in  the  military  or 
naval  service  of  the  United  States,  in  the  line  of  duty. 

II.  WIDOWS  of  officers,  soldiers,  or  seamen,  dying   of  wounds 
received  or  of  disease  contracted  in  the  military  or  naval  service,  as 
above. 

III.  CHILDREN,  under  sixteen  years  of  age,  of  such  deceased  per- 
sons, if  there   is   no  widow  surviving,  or  from  the   time   of  the 
widow's  remarriage. 

IV.  MOTHERS  of  officers,  soldiers,  or  seamen,  deceased  as  afore- 
said, provided  the  latter  have  left  neither  widow  nor  children  under 
sixteen   years   of   age ;   and  provided,  also,  that  the  mother  was 
dependent,  wholly  or  in  part,  upon  the  deceased  for  support. 

V.  FATHERS,  upon  the  same  conditions,  and  subject  to  the  same 
restrictions,  as  mothers,  if  Uiere  be  no  mother  surviving. 


LSTSTBUCTIONS.  QQ" 

VI.  BROTHERS  AND  SISTERS,  under  sixteen  years  of  age,  of 
deceased  officers,  soldiers,  or  seamen,  dependent  on  the  latter 
wholly  or  in  part  for  support,  if  there  be  neither  widow,  minor 
child  under  sixteen  years  of  age,  nor  father  surviving  ;  all  of  such 
minor  brothers  and  sisters  to  be  pensioned  jointly. 

Only  one  full  pension  in  any  case  will  be  allowed  to  the  relatives 
of  a  deceased  officer,  soldier,  or  seaman,  and  in  order  of  precedence, 
as  set  forth  above. 

The  rates  of  pension  to  the  several  classes  and  grades  are  set 
forth  in  the  First  Section  of  the  Act  of  July  14,  1862,  as  follows :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  (he  United  States  of 
America  in  Congress  assembled,  That  if  any  officer,  non-commissioned  officer,  musi- 
cian, or  private  of  the  army,  including  regulars,  volunteers,  and  militia,  or  any 
officer,  -warrant  or  petty  officer,  musician,  seaman,  ordinary  seaman,  ilotillaman, 
marine,  clerk,  landsman,  pilot,  or  other  person  in  the  navy  or  marine  corps,  has 
been,  since  the  fourth  day  of  March,  eighteen  hundred  and  sixty-one,  or  shall  here- 
after be,  disabled  by  reason  of  any  wound  received  or  disease  contracted  while  in 
the  service  of  the  United  States,  and  in  the  line  of  duty,  he  shall,  upon  making  due 
proof  of  the  fact  according  to  such  forms  and  regulations  aspire  or  may  be  provided 
by  or  in  pursuance  of  law,  be  placed  upon  the  list  of  invalid  pensions  of  the  Unite  1 
States,  and  be  entitled  to  receive,  for  the  highest  rate  of  disability,  such  pension  n.s 
is  hereinafter  provided  in  such  cases,  and  for  an  inferior  disability  an  amount  pro- 
portionate to  the  highest  disability,  to  commence  as  hereinafter  providei  and  con- 
tinue during  the  existence  of  such  disability.  The  pension  for  a  total  disability 
for  officers,  non-commissioned  officers,  musicians,  and  privates  employed  in  the 
military  service  of  the  United  States,  whether  regulars,  volunteers,  or  militia,  and 
in  the  marine  corps,  shall  be  as  follows,  viz.,  lieutenant-colonel,  and  all  officers  of  a 
higher  rank,  thirty  dollars  per  month  ;  major,  twenty-five  dollars  per  month ;  caj  • 
tain,  twenty  dollars  per  month ;  first  lieutenant,  seventeen  dollars  per  month ; 
second  lieutenant,  fifteen  dollars  per  month ;  and  non-commissioned  oflicers,  musi- 
cians, and  privates,  eight  dollars  per  month.  The  pension  for  total  disability  for 
officers,  warrant  or  petty  officers,  and  others  employed  in  the  naval  service  of  the 
United  States,  shall  be  as  follows,  viz.,  captain,  commander,  surgeon,  paymaster, 
and  chief  engineer,  respectively,  ranking  with  commander  by  law,  lieutenant  com- 
manding, and  master  commanding,  thirty  dollars  per  month ;  lieutenant,  surgeon, 
paymaster,  and  chief  engineer,  respectively,  ranking  with  lieutenant  by  law,  and 
passed  assistant  surgeon,  twenty-five  dollars  per  month;  professor  of  mathematics, 
master,  assistant  surgeon,  assistant  paymaster,  and  chaplain,  twenty  dollars  per 
month  ;  first  assistant  engineers  and  pilots,  fifteen  dollars  per  month  ;  passed  mid- 
shipman, midshipman,  captain's  and  paymaster's  clerk,  second  and  third  assistant 
engineer,  master's  mate,  and  all  warrant  officers,  ten  dollars  per  month ;  all  petty 


6^3  PENSIONS. 

officers,  anu  all  other  persons  before  named  employed  in  the  naval  service,  eight 
dollars  per  month ;  and  all  commissioned  officers,  of  either  service,  shall  receive 
such  and  only  such  pension  as  is  herein  provided  for  the  rank  in  -which  they  hold 
commissions. 

"Widows  who  have  ncTcr  applied  for  pension,  and  who  are  entitled 
to  the  additional  allowance  provided  by  the  Second  Section  of  the 
Act  of  July  25,  1866,  should  file  an  application  in  accordance  witb 
Form  215. 

Army  Pensions. 

All  declarations  (including  evidence  of  identity)  are  required  to 
be  made  before  a  court  of  record,  or  before  some  officer  of  such 
court  duly  authorized  to  administer  oaths,  and  having  custody  of 
its  seal.  Testimony  other  than  that  indicated  above  may  be  taken 
before  a  justice  of  the  peace,  or  other  officer  having  like  authority 
to  administer  oaths ;  but  in  no  case  will  any  evidence  be  received 
that  is  verified  before  an  officer  who  is  concerned  in  prosecuting  the 
claim,  or  has  a  manifest  interest  therein. 

The  subjoined  fofms  should  be  exactly  followed  in  the  classes  for 
which  they  are  designated.  No  attorney  will  be  regarded  as  having 
filed  the  necessary  declaration  and  affidavits,  unless  the  forms,  as 
well  as  tl&e  instructions  given  in  this  pamphlet,  are  strictly  complied 
with.  In  declarations  of  widows  and  mothers,  the  continuance  of 
their  widowhood  must  be-  averred. 

In  support,  of  the  allegations  made  in  the  claimant's  declaration; 
testimony  will  be  required  in  accordance  with  the  following  rules:  — 

1.  The  claimant's  identity  must  be  proved  by  two  witnesses  cer- 
tified by  a  judicial  officer  to  be  respectable  and  credible,  who  are 
present  and  witness  the  signature  of  the  declarant,  and  who  state, 
upon  oath  or  affirmation,  their  belief,  either  from  personal  acquaint- 
ance or  for  other  reasons' given,  that  he  or  she  is  the  identical  person 
he  or  she  represents  himself  or  herself  to  be. 

2.  Every  applicant  for  an  invalid  pension  must,  if  in  his  power, 
produce  the  certificate  of  the  captain,  or  of  some  other  commis- 
sioned officer  under  whom  he  served,  distinctly  stating  the  time  and 
place  of  the  said  applicant's  having  been  wounded  or  otherwise  dis- 
abled, and  the  nature  of  the  disability,  and  that  the  said  disability 


INSTETJCTIONS.  609 

arose  while  he  was  in  the  service  of  the  United  States  and  in  •  the 
line  of  his  duty. 

3.  If  it  be  impracticable  to  obtain  such  certificate,  by  reason  of 
the  death  or  removal  of  said  officers,  it  must  be  so  stated  under 
oath  by  the  applicant,  and  his  averment  of  the  fact  proved  by  per- 
sons of  known  respectability,  who  must  state  particularly  all  the 
knowledge  they  may  possess  in  relation  to  such  death  or  removal ; 
then  secondary  evidence  can  be  received.     In  such  case*  the  appli- 
cant must  produce  the  testimony  of  at  least  two  credible  witnesses 
(who  were  in  a  condition  to  know  the   facts  about  which  they 
testify),  whose  good  character  must  be  vouched  for  by  a  judicial 
officer,  or  by  some  one  known  to  the  department.     The  witnessess 
must  give  a  minute  narrative  of  the  facts  in  relation  to  the  matter, 
and  must  show  how  they  obtained  a  knowledge  of  the  facts  to  which 
they  testify. 

4.  The  usual  certificate  of  disability  for  discharge  should  show  the 
origin,  character,  and  degree  of  the  claimant's  disability  ;  but,  when 
that  is  wanting  or  defective,  the  applicant  will  be  required  to  be 
examined  by   some   surgeon   regularly   appointed,   unless    clearly 
impracticable. 

5.  The  habits  of  the  applicant,  and  his  occupation  since  he  left 
the  service,  should  be  shown  by  at  least  two  creditable  witnesses. 

If  the  applicant  claims  a  pension  as  the  widow  of  a  deceased 
officer  or  soldier,  she  must  prove  the  legality  of  her  marriage  and 
the  death  of  her  husband.  She  must  also  furnish  the  names  and 
ages  of  decedent's  children  under  sixteen  years  of  age  at  her  hus- 
band's decease,  and  the  place  of  their  residence.  On  a  subsequent 
marriage  her  pension  will  cease,  and  the  minor  child  or  children  of 
the  deceased  officer  or  soldier,  if  any  be  living  under  the  age  of 
sixteen  years,  will  be  entitled  to  the  same  in  her  stead,  from  the 
date  of  such  marriage,  on  the  requisite  proof,  under  a  new  declara- 
tion. Proof  of  the  marriage  of  the  parents  and  of  the  age  of  claim- 
ants will  be  required  in  all  applications  in  behalf  of  minor  children, 
if  such  evidence  has  not  been  filed  in  a  prior  claim.  The  legality 
of  the  marriage,  in  either  case,  may  be  ascertained  by  the  affidavit 
of  the  clergyman  or  magistrate  who  joined  them  in  wedlock,  or  by 
the  testimony  of  respectable  persons  having  knowledge  of  the  fact, 


610  PENSION* 

in  default  of  record  evidence,  which  must  always  be  furnished,  or  its 
absence  shown.  The  age's  and  number  of  children  may  be  ascer- 
tained by  the  deposition  of  the  mother,  accompanied  by  the  testi- 
mony of  respectable  persons  having  knowledge  of  them,  or  by 
transcripts  from  the  parish  or  town  registers,  duly  authenticated. 

A  mother  or  father,  to  be  entitled  to  a  pension,  as  having  been 
wholly  or  partly  dependent  on  a  deceased  officer,  soldier,  or  seaman, 
must  prove  that  the  latter  contributed  to  her  or  his  support  for  a 
certain  period,  showing  specifically  in  what  manner  and  to  what 
extent. 

If  the  claimant  be  a  brother  or  sister,  like  proof  will  be  required 
of  the  marriage  of  parents,  of  relationship  to  the  deceased,  and  of 
dependence. 

Guardians  of  minor  claimants  must,  in  all  cases,  produce  evidence 
of  their  authority  as  such,  under  the  seal  of  the  court  from  which 
their  appointment  is  'obtained. 

Applicants  of  the  last  five  classes  heretofore  enumerated,  who  have 
in  any  manner  aided  or  abetted  the  Rebellion  against  the  United- 
States  Government,  are  not  entitled  to  the  benefits  of  these  acts. 

Invalid  applicants  who  are  minors  must  apply  in  their  own  behalf, 
without  the  intervention  of  a  guardian. 

Attorneys  for  claimants  must  have  proper  authority  from  those 
in  whose  behalf  they  appear.  Powers  of  attorney  must  be  signed  in 
the  presence  of  two  witnesses,  and  acknowledged  before  a  duly  quali- 
fied officer,  whose  official  character  must  be  certified  under  seal. 

In  all  cases  the  post-office  address  of  the  claimant  must  be  dis- 
tinctly stated  over  his  or  her  proper  signature. 

Applications  under  this  act  will  be  numbered  and  acknowledged, 
to  be  acted  on  in  their  turn.  In  filing  additional  evidence,  corre- 
spondents should  always  give  the  number  of  the  claim,  the  name  of 
the  claimant,  and  the  post-office  address  at  the  time  the  claim  was 
originally  filed. 

Navy  Pensions. 

The  foregoing  instructions,  with  obvious  variations,  are  applicable 
to  navy  cases.     In  addition  thereto,  the  following  is  subjoined :  — 
The  surgeon's  certificate  for  discharge  should  show  the  character 


PENSION  ACTS.  611 

and  degree  of  the  claimant's  disability ;  but  when  that  is  wanting, 
and  when  the  certificate  of  a  navy  surgeon  or  of  a  board  of  survey 
is  not  obtainable,  that  fact  must  be  satisfactorily  explained,  and  the 
certificate  of  two  respectable  civil  surgeons  will  be  received,  in 
accordance  with  Form  221.  These  surgeons  must  give  in  their  cer- 
tificate a  particular  description  of  the  wound,  injury,  or  disease,  and 
specify  how  and  in  what  manner  his  present  condition  and  disability 
are  connected  therewith.  The  degree  of  disability  for  obtaining 
subsistence  by  manual  labor  must  also  be  stated.  The  certificates 
of  civil  surgeons  should  be  forwarded  with  the  declaration. 


ACT   OF   JUJLY    14,    18G3. 

The  foregoing  instructions  comprise  all  explanations  required  by 
the  Act  of  July  14,  1862. 

ACT    OP    JULY   4,    1804. 

Attention  is  especially  directed  to  the  following  particulars,  in 
which  previous  legislation  and  official  practice  have  been  modified :  — 

1.  BIENNIAL  EXAMINATIONS.  —  The  biennial  examinations  of  invalid 
pensioners,  required  by  the  Act  of  March  3,  1859,  will  hereafter  be 
made  by  one  surgeon  only,  if  he  is  regularly  appointed,  or  holds  a 
surgeon's  commission  in  the  army.     In  no  case  will  an  examination 
by  unappointed  civil  surgeons  be  accepted,  unless  it  is  satisfactorily 
shown  by  the  affidavit  of  one  or  more  disinterested  and  credible  wit- 
nesses, giving  the  reasons  for  such  asseveration,  that  an  examination 
by  a  commissioned  or  duly  appointed  surgeon  is  impracticable.     Oil 
such  proof,  the  certificate  of  two  unappointed  civil  surgeons  will  be 
accepted  in  the  same  manner  as  heretofore.     Fees  paid  to  unap- 
pointed examining  surgeons  will  not  be  refunded.    Fees  of  appointed 
surgeons  will  be  paid  directly  by  pension  agents,  under  prescribed 
regulations,  and  not  by  the  pensioner  (to  be  afterwards  refunded), 
as  under  the  Act  of  1862. 

2.  DECLARATIONS.  —  All  declarations  of  claimants  residing  within 
twenty-five  miles  of  any  court  of  record  must,  without  exception,  be 
made  before  such  court,  or  before  some  officer  thereof  having  cus- 
tody of  its  seal.     For  the  convenience  of  persons  residing  mor3  than 


612  PENSIONS. 

twenty-five  miles  distant  from  any  court  of  record,  officers  qualified 
by  law  to  administer  oaths  may  be  designated  by  the  Commissioner 
of  Pensions,  before  whom  such  declarations  shall  be  executed. 

3.  INCREASED  PENSIONS  IN  CERTAIN  CASES. — A  pension  of  twenty- 
five  dollars  per  month  is  granted  to  those  having  lost  both  hands  or 
both  eyes  in  the  military  service  of  the  United  States,  in  the  line  of 
duty,  and  twenty  dollars  per  month,  to  those  who,  under  the  same 
Conditions,  shall  have  lost  both  feet,  if  such  parties  were  entitled  to 
a  lower  rate  of  pension  under  the  Act  of  1862.     This  higher  pension 
will   date   only  from  the  4th  day  of  July,  1864,  in  the  case  of 
pensioners  already  enrolled,  or  of  applicants  discharged  prior  to  that 
date. 

4.  COMMENCEMENT  OF  PENSIONS  WHEN  APPLICATIONS  ARE  DELAYED 
MORE  THAN  THREE  YEARS.  —  In  all  cases  in  which  the  application  is 
filed  more  than  three  years  after  the  discharge  or  decease  of  the  per- 
son on  whose  acccount  the  claim  is  made,  the  pension,  if  allowed, 
will  commence  at  the  date  of  filing  the  last  paper  in  support  of  such 
claim.     Claims  filed  before  July  4,  1864,  must  be  prosecuted  to  a 
final  issue  within  three  years  from  that  date,  and  those  filed  subse- 
quently to  July  4,  1864,  must  be  prosecuted  to  a  final  issue  within 
five  years  from  the  date  of  filing,  or  they  will  thereafter  be  rejected, 
in  the  absence  of  satisfactory  record*  evidence  from  the  War  Depart- 
ment in  support  of  such  claim. 

[By  the  Sixth  Section  of  the  Act  of  July  27,  1868,  it  is  provided 
that  in  case  the  application  is  filed  within  jive  years  after  the  title 
to  pension  accrued,  the  same  shall  commence  from  the  discharge  or 
from  the  death  of  the  person  on  .whose  account  the  pension  is 
claimed,  if  disability  or  death  was  incurred  subsequent  to  March  4, 
1861.] 

5.  WIDOW'S  PENSION  NOT  RENEWABLE  AFTER  REMARRIAGE.  —  The 
remarriage  of  a  widow  terminates  all  claim  to  the  pension  from  the 
date  of  such  remarriage,  although  she  may  again  become  a  widow. 

6.  SPECIAL  EXAMINATIONS  OF  PENSIONERS.  —  Special  examinations 
of  pensioners  will  be  ordered  at  such  times  as  the  interests  of  the 
government  may  seem  to  require ;  and  such  examinations,  subject 
to  an  appeal  to  a  board  of  three  appointed  surgeons,  will  take  pro-  . 
cedence  of  all  previous  examinations. 


PENSION  ACTS.  613 

7.  PENSIONS  TO  UNENLISTED  MEN,  OR  TO  THEIR  DEPENDENTS,  IN 
CERTAIN  CASES.  —  Persons  disabled  ly  wounds  received  in  battle  while 
temporarily  serving  with  any  regularly  organized  military  or  naval 
force  of  the  United  States,  since  March  4,  1861,  but  not  regularly 
enlisted,  and  the  widows,  dependent  mothers  or  sisters,  or  minor 
children  under  sixteen  years  of  age,  of  those  who,  serving  in  like 
manner,  have  been  or  may  be  killed,  are  entitled,  on  satisfactory 
proof,  to  the  benefits  of  the  Act  of  July  14,  1862,  on  the  conditions 
therein  prescribed.      Claims  of  this  character  must   be  filed   and 
established  prior  to  July  4,  1867. 

[By  the  Eleventh  Section  of  the  Act  of  July  27,  1868,  the  limita- 
tion of  the  above  provision  is  extended  to  July  4,  1872.] 

Proof  of  service,  in  cases  arising  under  the  Ninth  Section  of  the 
Act  of  July  4,  1864,  must  be  furnished  by  a  commissioned  officer 
under  or  with  whom  such  unenlisted  person  served,  showing  the 
nature,  period,  and  circumstances  of  such  service.  Proof  as  to  the 
disability  or  death  of  a  person  so  serving  must  be  shown  in  the  same 
manner,  when  practicable,  or  by  the  affidavits  of  two  non-commis- 
sioned officers  or  privates  in  the  same  service,  with  evidence  that 
proof  by  a  commissioned  officer  is  impracticable.  If  the  officer  fur- 
nishing such  evidence  is  not  at  the  time  in  the  service,  his  certifi- 
cate must  be  duly  sworn  to  and  his  signature  authenticated. 

8.  COMMENCEMENT  OP  WIDOWS'  PENSIONS  IN  CERTAIN  CASES. — 
When  an  applicant  entitled  to  an  invalid  pension  dies  during  the 
pendency  of  his  claim,  leaving  a  widow  or  dependent  relative  en- 
titled to  receive  a  pension  by  reason  of  his  service  and  death,  such 
pension  will  commence  from  the  date  at  which  the  invalid  pension 
would  have  commenced  if  admitted  while  the  claimant  was  living. 

9.  EVIDENCE  OF  MUSTER-IN.  —  In  accordance  with  the  Eleventh 
Section  of  the  Act  of  July  4,  1864,  evidence  of  the  muster-in  of  the 
soldier  will  not  be  required  in  any  case,  but  there  must  be  positive 
record  evidence  of  service,  except  in  such  cases  as  are  embraced 
within  the  provisions  of  the-ninth  section  of  the  said  act.     The  elev- 
enth section  applies  only  to  enlisted  soldiers.     Evidence  of  muster-iii 
in  the  case  of  commissioned  officers  is  still  required. 

10.  FEES  OP  CLAIM  AGENTS.  —  Claim  agents  are  prohibited,  under 
severe  penalty,  from  receiving  more  than  ten  dollars  in  all  for  their 


614  PENSIONS. 

services  in  prosecuting  any  pension  claim,  or  from  receiving  any 
part  of  such  fee  in  advance,  or  any  percentage  of  any  claim,  or  any 
portion  thereof,  for  pension  or  bounty. 

11.  PROOF  OF  MARRIAGE  OF  COLORED  SOLDIERS'  WIDOWS.  —  To 
establish  the  marriage  of  the  alleged  widow  of  any  colored  soldier, 
evidence  of  habitual  recognition  of  the  marriage  relation  between 
the  parties,  for  two  years  next  preceding  the  soldier's  enlistment, 
must  be  furnished  by  the  affidavits  of  at  least  two  credible  witnesses ; 
provided,  however,  if  such  parties  resided  in  any  State  in  which 
their  marriage  may  have  been  legally  solemnized,  the  usual  evidence 
shall  be  required.  The  widow  or  children,  claiming  the  benefits  of 
this  provision,  must  be  free  persons.  (See  Section  14,  Act  of  June 
6,  I860.) 

ACT    OF    JU>*E    6,    18G6. 

The  First  and  Third  Sections  of  the  Act  of  March  8,  1865,  are 
repealed  by  the  Act  of  June  6,  1866. 

1.  ASSISTANT  OR  CONTRACT  SURGEONS.  —  By  the  Second  Section 
of  the  Act  of  March  3, 1865,  acting  assistant  (or  "  contract ")  sur- 
geons who,  in  certain  specified  cases  and  under  certain  limitations, 
become  disabled,  are  entitled  to  the  benefit  of  the  pension  laws  the 
same  as  though  they  had  been  mustered  into  service  with  the  rank 
of  assistant  surgeon. 

The  widows  or  dependent  relatives  of  such  officers  are  only  en- 
titled to  the  benefits  of  the  pension  laws,  provided  the  said  officers 
died  while  in  the  service. 

The  Fourth  Section  of  the  Act  of  March  8,  1865,  provides  for  the 
allowance  of  pensions  to  minor  children  less  than  sixteen  years  of 
age,  under  certain  circumstances  not  definitely  provided  for  in  the 
previous  acts.  The  limitations  dependent  on  the  date  of  application 
and  of  filing  the  last  proof  are  to  be  construed  in  connection  with 
the  sixth  section  of  the  Act  of  July  27,  1868. 

2.  PENSIONS  TO  CHAPLAINS.  —  The  Second  Section  of  the  Act 
approved  April  9,  186-4,  provides  for  pensions  to  chaplains  and  their 
widows  and  dependent  relatives,  and  is  as  follows :  — 

"  The  act  approved  July  14,  1862,  is  hereby  so  amended  as  to 
include  chaplains  in  the  regular  and  volunteer  forces  of  the  army  : 
Provided,  That  the  pension  to  which  chaplains  shall  be  entitled  for 


PENSION  ACTS.  615 

a  total  disability  shall  be  twenty  dollars  per  month,  and  all  the  pro- 
visions of  the  act  to  which  this  section  is  an  amendment  shall  apply 
to  and  embrace  the  widows,  children,  mothers,  and  sisters  of  chap- 
lains of  the  land  forces  who  have  died  since  .the  fourth  day  of  March, 
1861,  or  shall  die  of  wounds  or  diseases  contracted  in  the  service  of 
the  United  States,  and  while  such  chaplains  are  or  shall  be  in  the 
line  of  their  duty." 

ACT  OF  JUNE  0,  1866. 

1.  INCREASE  OF  PENSIONS.  —  The  supplementary  Pension  Act,  ap- 
proved June  6,  I860,  provides  increased  rates  of  pensions  over  those 
granted  by  the  Act  of  July  14,  1862,  in  the  following  cases,  viz.,  — 

Twenty-five  dollars  per  month  to  all  those  invalids  entitled,  under 
the  Act  of  July  14,  1802,  to  a  lower  rate  of  pension,  on  account  of 
service  rendered  since  March  4,  1861,  "  who  shall  have  lost  the 
sight  of  both  eyes,  or  who  shall  have  lost  both  hands,  or  been  per- 
manently and  totally  disabled  in  the  same,  or  otherwise  so  perma- 
nently and  totally  disabled  as  to  render  them  utterly  helpless,  or  so 
nearly  so  as  to  require  the  constant  personal  aid  and  attendance  of 
another  person." 

[By  the  Twelfth  Section  of  the  Act  of  July  27,  1868,  a  pension 
of  twenty-five  dollars  is  allowed  to  those  having  totally  lost  their 
sight,  although  one  eye  had  been  lost  prior  to  enlistment.] 

Twenty  dollars  per  month  to  those  invalids,  who,  being  entitled 
under  like  conditions  to  a  lower  rate  of  pension,  "  shall  have  lost 
both  feet,  or  one  hand  and  one  foot,  or  been  totally  and  perma- 
nently disabled  in  the  same,  or  otherwise  so  disabled  as  to  be  inca- 
pacitated for  performing  any  manual  labor,  but  not  so  much  so  as 
to  require  constant  personal  aid  and  attention." 

Fifteen  dollars  per  month  to  those  invalids,  who,  under  like  condi- 
tions, "  shall  have  lost  one  hand  or  one  foot,  or  been  totally  and  per- 
manently disabled  in  the  same,  or  otherwise  so  disabled  as  to  render 
their  inability  to  perform  manual  labor  equivalent  to  the  loss  of  a 
hand  or  foot." 

In  order  to  obtain  the  benefits  of  the  foregoing  provisions,  pen- 
sioners already  enrolled  will  file  an  application  in  accordance  with 
Form  213,  appended  to  this  chapter.  Proof  in  addition  to  that  on  file 


616  PENSIONS. 

with  the  proviouz  application  need  not  be  forwarded,  except  as  shall 
be  specially  required  in  each  case,  after  the  application  is  received. 
The  applicant  need  only  be  examined  by  a  pension  surgeon  when 
expressly  required  on  due  notice  from  this  office.  Applicants  not 
already  pensioned,  who  believe  themselves  entitled  to  the  benefit  of 
the  foregoing  provisions,  will  specifically  set  forth  such  claim  in  their 
declarations,  carefully  stating  the  nature  of  the  disability  on  account 
of  which  such  higher  rate  of  pension  is  claimed.  The  declaration 
must  be  made  before  some  officer  of  a  court  of  record,  or  before  a 
pension  notary  designated  by  this  office,  as  provided  by  the  Third 
Section  of  the  Act  of  July  4, 1864. 

The  above-specified  increased  rates  of  pension  will  date  only  from 
the  6th  day  of  June,  1866. 

2.  PENSIONS  NOT  ASSIGNABLE  OR  LIABLE  TO  ATTACHMENT.  —  The 
Second  and  Third  Sections  of  the  Act  of  June  6, 1866,  are  applicable 
to  all  pensions  granted  under  the  various  acts  of  Congress.     By  the 
provisions  of  the  Second  Section,  pensions  are  secured  to  the  exclu- 
sive use  and  benefit  of  the  pensioners.    Any  "  pledge,  mortgage,  saley 
assignment,  or  transfer  of  any  right,  claim,  or  interest  in  any  pen- 
sion," is  declared  void  and  of  no  effect.     Any  person  other  than  the 
pensioner,  who  may  receive  any  payment  of  a  pension,  is  required 
to   disclaim,  under   oath,  any  interest,  by  pledge,  mortgage,  sale, 
assignment,  or  transfer,  in  the  money  to  be  received,  or  any  knowl- 
edge or  belief  that  the  same  has  been  so  disposed  of  to  any  person  ; 
and  the  penalty  of  perjury  is  affixed  for  falsely  taking  the  oath  so 
required. 

The  Third  Section  fixes  a  penalty  for  the  offence  of  post-dating 
vouchers  required  in  drawing  pensions.  It  further  provides  that  no 
pension-money  shall  be  "  liable  to  attachment,  levy,  or  seizure  by  or 
under  any  legal  or  equitable  process  whatever,  whether  the  same 
remains  with  the  Pension  Office,  or  any  officer  or  agent  thereof,  or 
is  in  course  of  transmission  to  the  pensioner  entitled  thereto,  but 
shall  inure  wholly  to  the  benefit  of  such  pensioner." 

3.  FEES  FOB  DRAWING  PENSIONS  RESTRICTED.  —  The  Fourth  Section 
of  the  act  prohibits,  under  penalty,  the   receiving  of  more  than 
twenty-five  cents  for  preparing  the  necessary  vouchers  for  drawing 
a  semi-annual  payment  of  any  pension,  and  fixes  tho  fee  receivable 


PENSION   ACTS.  617 

by  any  pension  agent  for  administering  an  oath  t3  a  pensioner,  or 
his  attorney-in-fact,  at  fifteen  cents. 

4.  PENSIONS  CONTINUED  TO  PENSIONERS  ENTERING  CIVIL  SERVICE. 
—  The  Fifth  Section  unconditionally  repeals  that  provision  of  the 
Act  of  March  3, 1865,  by  which  pensions  were  withheld  from  certain 
pensioners   in  civil  employment  under  the  government.     Persons 
desiring  the   benefit  of  this   repeal  will   make   application  for   a 
"  renewal "  of  their  pensions  as  in  other  cases,  filing  an  examining 
surgeon's  certificate  showing  their  present  disability,  except  in  the 
case  of   those  exempt  from  biennial  examination.     The  restored 
pension  will  date  only  from  the  passage  of  this  act. 

5.  INVALID  PENSION  CERTIFICATES  ISSUED  AFTER  DEATH  OF  APPLI- 
CANTS. —  The  Sixth  Section  gives  validity  to  a  certificate  issued  after 
the  death  of  an  applicant  for  an  invalid  pension,  if  he  left  neither 
widow  nor  minor  child  entitled  to  a  pension  by  reason  of  his  death, 
provided  the  application  was  pending  and  the  proof  complete  at  the 
time  of  his  death.     This  section  is  construed  as  retro-active  in  its 
operation,  and  consequently  it  applies  to  certificates  already  issued 
which  come  within   the  limitations   specified,  previous  legislation 
having  provided  for  the  cases  in  which  the  deceased  left  a  widow  or 
minor  children  entitled  to  a  pension  on  his  behalf. 

[By  the  Ninth  Section  of  the  Act  of  July  27,  1868,  the  parties 
above  entitled  may  complete  the  proof  after  the  death  of  tb^  appli- 
cant, and  receive  the  accrued  pension.] 

6.  RANK  RECOGNIZED  WITHOUT  MUSTER  IN  CERTAIN  CASES.  —  The 
Seventh  Section  recognizes  the  rank  conferred  by  a  commission,  so 
far  as  pensions  are  concerned,  without  an  actual  muster  into  such 
rank,  provided  the  failure  to  be  mustered  was  not  through  the  neg- 
lect or  refusal  of  the  person  commissioned.     The  proviso  renders  it 
necessary,  that,  before   an  application   involving  this   question   is 
allowed,  the  reason  why  the  officer  was  not  duly  mustered  should 
be  shown,  the  best  proof  of  which  will  be  the  affidavit  of  the  proper 
mustering  officer,  or  of  a  superior  officer  having  personal  knowledge 
of  the  facts. 

7.  OFFICERS  AND  ENLISTED  MEN  ON  SICK  FURLOUGH.  —  Officers 
absent  on  sick  leave,  and  enlisted  men  on  sick  furlough,  are,  in 
accordance  with  the  Eighth  Section,  to  be  regarded  in  the  samo 


618  PENSIONS. 

manner  as  if  they  were  in  the  field  or  in  hospital.  This  section 
will  not  be  construed,  however,  as  bringing  within  the  intent  of  the 
pension  laws  any  cause  of  disability  or  death  altogether  apart  from 
the  military  or  naval  service,  and  resulting  neither  directly  noi 
indirectly  therefrom. 

8.  CONSTRUCTIVE  EXTENSION  OF  THE  PERIOD  OF  SERVICE.  —  The 
Ninth  Section  treats  the  period  of  service,  in  the  army  or  navy,  as 
extending  to  the  date  of  the  actual  disbandment  of  the  organization 
to  which  the  party  belonged,  except  in  the  case  of  discharge  for 
other  cause  than  the  expiration  of  the   term  of  service   of  such 
organization. 

9.  TEAMSTERS,  ARTIFICERS,  AND  OTHER  ENLISTED   MEN,  not  em- 
braced in  the  terms  of  the  Act  of  July  14,  1852,  or  of  acts  supple- 
mentary thereto,  are,  by  the  Tenth  Section  of  the  Act  of  June  6, 
1866,  included  in  the  administration  of  the  pension  laws,  in  the 
class  of  non-commissioned  officers  and  privates. 

10.  MINOR  CHILDREN  TO  BE  PENSIONED  IN  CERTAIN  CASES  INSTEAD 
OF  THE  WIDOW.  —  The  Eleventh  Section  provides  that  when  any 
widow  entitled  to  a  pension  under  previous  acts  has  abandoned  the 
care  of  a  child  or  children  of  her  deceased  husband,  under  sixteen 
years  of  age,  "  or  is  an  unsuitable  person,  by  reason  of  immoral 
conduct,  to  have  the  custody  of  the  same,"  the  pension  shall  be  paid 
to  the  duly  authorized  guardian  of  such  child  or  children,  while 
under  the  age  of  sixteen  years,  and  not  to  the  widow.     The  proper 
proof  in  such  case,  as  provided  by  this  section,  is  the  certificate  of 
the  judge  of  any  court  having  probate  jurisdiction  "  that  satisfactory 
evidence  has  been  produced  before  such  court"  to  the  effect  above 
indicated.     In  presenting  an  application  under   this  section,   the 
guardians  of  the  minor  child  or  children  will  make  a  declaration  in 
accordance  with  the  appended  Form  214. 

[By  Section  Eight  of  the  Act  of  July  27,  1868,  the- provision 
requiring  a  certificate  of  a  judge  of  a  court,  in  order  to  suspend  a 
claim,  is  annulled,  and  the  matter  left  to  the  discretion  of  the  Com- 
missioner.] 

11.  PENSIONS  GRANTED  TO  DEPENDENT  FATHERS  AND  TO  DEPENDENT 
ORPHAN  BROTHERS.  —  By  the  Twelfth  Section,  the  provisions  of  the 
Act  of  July  14, 1862,  are  extended  so  as  to  include  the  dependent 


PENSION  ACTS.  619 

brother  or  brothers  of  a  deceased  officer,  soldier,  or  seaman,  and  the 
dependent  father  of  such  deceased  persons,  under  like  limitations  as 
apply  in  the  case  of  dependent  sisters  and  mothers ;  but  not  more 
than  one  pension  is  granted  on  account  of  the  same  person,  or  to 
more  than  one  of  said  classes.  The  forms  prescribed  for  the  latter 
cases  may  be  used,  with  obvious  variations,  in  applications  made  by 
dependent  fathers,  or  on  behalf  of  dependent  brothers. 

[By  Section  One  of  the  Act  of  July  27, 1868,  it  is  required  that 
minor  brothers  and  sisters  shall  be  pensioned  jointly,  and  that 
dependent  fathers  shall  have  precedence  of  both.] 

12.  LIMITATIONS  AS  TO  NUMBER  AND  DATE  OP  PENSIONS.  —  The 
Thirteenth  Section  declares  that  but  one  pension  shall  be  granted  to 
any  person  at  the  same  time  ;  and  that,  when  application  is  not  made 
within  three  years  after  the  death  or  discharge  of  the  party  on  whose 
account  a  pension  is  claimed,  such  pension,  if  allowed,  "  shall  com- 
mence from  the  date  of  filing  the  last  paper  in  said  case  by  the  party 
prosecuting  the  same."    This  limitation  applies  to  all  classes  of  pen* 
sions. 

[The  above  provision  is  annulled  by  the  Sixth  Section  of  the  Act 
of  July  27,  1868,  and  five  years  allowed  after  the  death  or  discharge 
of  said  party,  in  which  to  make  application.] 

13.  EVIDENCE  OP  MARRIAGE  OP  COLORED  APPLICANTS.  —  The  Four- 
teenth Section  provides  that  habitual  recognition  of  the  marriage- 
relation  between  colored  parties,  —  that  is,  in  the  absence  of  the  usu- 
ally required  proof,  —  when  shown  by  "proof  satisfactory  to  the 
Commissioner  of  Pensions,"  shall  be  accepted  as  evidence  of  mar- 
riage, and  the  children  of  such  parties  shall  be  regarded  as  if  born 
in  lawful  wedlock.     When  the  usual  proof  of  marriage  can  be  fur 
nished,  it  will  be  required  as  heretofore.     When  only  evidence  of 
cohabitation  and  mutual  recognition  can  be  adduced,  as  provided 
in  this  section,  the  testimony  of  two  crpdible  and  disinterested  wit- 
nesses will  be  required,  who  must  state  how  long  they  have  been 
personally  acquainted  with  the  parties,  and  for  how  long  a  period 
the  latter  are  known  to  have  recognized  each  other  as  man  and 
wife.     If  such  acquaintance  is  deemed  to  be  of  too  recent  date  to 
warrant  the  acceptance  of  this  testimony,  or  if  there  is  reason  to 
doubt,  in  any  instance,  that  the  marriage-relation  existed  in  good 

41 


620  PENSIONS. 

faith,  more  specific  instructions  will  be  issued,  adapted  to  the  cir- 
cumstances of  the  particular  case. 

ACT    OF   JULY    US,    1866. 

1.  PROVOST-MARSHALS,  ENROLLING  OFFICERS,  AND  OTHERS,  ENTI- 
TLED TO  THE  BENEFITS  OF  THE  PENSION  LAWS.  —  The  First  Section  of 
the  Act  of  July  25,  1866,  extends  the  benefits  conferred  by  the  pen- 
sion laws  to  provost-marshals,  deputy  provost-marshals,  and  enroll- 
ing officers  disabled  in  the  line  of  official  duty  as  such,  and  to  the 
widows  or  dependents  of  such  officers  in  like  manner. 

Declarations  will  be  made  in  accordance  with  the  instructions 
issued  under  the  Pension  Act  of  July  14, 1862,  and  supplementary 
acts.  The  grade  of  such  officers,  for  the  purpose  of  determining  the 
rates  of  pensions  under  this  section,  is  fixed  as  follows :  provost- 
marshals  will  rank  as  captain,  their  deputies  as  first  lieutenants,  and 
enrolling  officers  as  second  lieutenants. 

2.  INCREASED  PENSIONS  TO  WIDOWS  AND  ORPHAN  CHILDREN  UNDER 
SIXTEEN  YEARS  OF  AGE.  —  The  Second  Section  of  this  act  allows  to 
those  who  are  or  shall  be  pensioned  as  widows  of  soldiers  or  sailors, 
two  dollars  per  month  additional  pension  for  each  child  (under  six- 
teen years  of  age)  of  the  deceased  soldier  or  sailor,  by  the  widow 
thus  pensioned. 

[By  Section  Four  of  the  Act  of  July  27,  1868,  provision  is 
made  for  the  extension  of  such  increase  to  children  by  a  former 
wife.] 

On  the  death  or  remarriage  of  such  widow,  or  on  the  denial  of  a 
pension  to  her,  in  accordance  with  the  provisions  of  Section  Eleven 
of  the  Act  of  June  6, 1866,  the  same  amount  to  which  she  would 
otherwise  be  entitled,  under  this  and  previous  provisions,  is  allowed 
to  the  minor  children.  The  number  and  names  of  the  children,  with 
their  ages,  must  be  proved,  as  heretofore  required  in  applications  for 
minors  by  guardians. 

The  widows  or  minor  children  of  officers  are  not  entitled  to  this 
increase.  Dependent  mothers  and  minor  sisters  and  brothers  are 
also  excluded. 

Declarations  for  an  increase  under  this  section  or  its  amend- 


PENSION  ACTS.  621 

meats,  if  for  the  widow,  will  be  made  in  accordance  with  Form 
215,  appended  to  this  chapter;  and  if  for  minor  children,  accord- 
ing to  Form  216.  In  cases  where  no  application  for  original  pension 
has  been  made  by  the  widow,  her  declaration  should  accord  with 
Form  217. 

3.  INCREASE  OF  PENSIONS  UNDER  ACTS  PRIOR  TO  JULY  14, 1862.  — 
All  pensioners  under  acts  approved  prior  to  July  14,  1862,  are,  by 
the  Third  Section  of  the  present  act,  granted  the  same  rights  as  those 
pensioned  under  acts  approved  at  or  since  that  date,  so  far  as  said 
acts  may  be  applicable,  with  the  exception  of  soldiers  of  the  Revolu- 
tion, or  their  widows.     This  section  applies  only  to  pensioners  who 
were  such  at  the  date  of  the  approval  of  this  act. 

[By  Section  Thirteen  of  the  Act  of  July  27, 1868,  it  is  provided 
that  widows  of  Revolutionary  soldiers,  now  receiving  a  less  sum, 
shall  be  entitled  to  eight  dollars  per  month.] 

Declarations  of  claimants  under  this  section  will  be  made  in 
accordance  with  the  forms  herewith  issued,  with  the  necessary  modi- 
fications, and  the  pension  certificates  will  be  returned. 

4.  INVALID  PENSIONS  OF  CLAIMANTS  DYING  WHILE  THEIR  APPLICA- 
TIONS ARE  PENDING,  THE  EVIDENCE  BEING   COMPLETED.  —  The   Fourth 

Section  of  this  act  is  construed  in  connection  with  the  Tenth  Section 
of  the  Act  of  July  4,  1864,  and  the  Sixth  Section  of  the  Act  of  June 
6, 1866,  to  which  it  is  supplementary.  If  an  applicant  for  an  in- 
valid pension  dies  while  his  claim  is  pending,  the  evidence  having 
been  completed,  the  pension,  under  the  provisions  of  this  section, 
and  of  those  sections  of  previous  acts  above  referred  to,  is  disposed 
of  as  follows :  — 

1.  If  he  left  a  widow,  or  minor  child  or  children  under  sixteen 
years  of  age,  or  other  dependent  relatives,  and  died  of  wounds  re- 
ceived, or  of  disease  contracted,  in  the  service  and  in  the  line  of 
duty,  no  invalid  pension  certificate  will  issue,  but  such  widow  or 
dependent  relatives  will  receive  a  pension,  in  their  own  right,  taking 
precedence  in  the  order  prescribed  by  law  in  other  cases.     (See  Sec- 
tion 10,  Act  of  July  4, 1864.) 

2.  If  the  claimant  left  a  widow  or  dependent  relatives,  but  did 
not  die  of  wounds  received  or  disease  contracted  in  the  service  and 
in  the  line  of  duty,  so  that  neither  widow  nor  dependent  relatives 


622  PENSIONS. 

would  be  entitled  to  a  pension  on  his  account,  then  the  certificate 
will  be  issued  in  his  name,  and  the  pension  paid  to  the  widow,*or  to 
the  dependent  relatives,  as  the  case  may  be,  in  the  same  order  in 
which  they  would  have  been  pensioned  if  entitled  as  set  forth  in  the 
preceding  paragraph. 

3.  If  the  claimant  left  no  widow  or  dependent  relatives,  the  cer- 
tificate will  issue  in  his  name,  and  the  pension  will  be  drawn  by  his 
executor  or  administrator. 

[The  Ninth  Section  of  the  Act  of  July  27,  1868,  provides  that  in 
case  of  a  person  entitled  to  pension  dying  subsequent  to  March  4, 
1861,  while  an  application  is  pending,  and  leaving  no  widow  or 
minor  child,  the  requirement  of  completion  of  proof  before  death  is 
dispensed  with.] 

5.  CERTAIN  ACCRUED  RIGHTS  RESERVED  UNDER  REPEALED  ENACT- 
MENTS. —  The  Fifth  Section  reserves  all  rights  that  may  have  accrued 
under  the  Fifth  Section  of  the  Pension  Act  of  July  4,  1864,  and  the 
Third  Section  of  the  Pension  Act  of  March  3,  1865,  though  re- 
pealed by  the  First  Section  of  the  Act  of  June  6,  1866. 

WIDOWS  WHO  REMARRY  WHILE  THEIR  CLAIMS  ARE  PENDING  are  en- 
titled, under  the  Sixth  Section,  if  their  claims  are  otherwise  valid, 
to  receive  pensions  to  the  date  of  remarriage,  if  the  deceased  officer, 
soldier,  or  sailor  on  whose  account  they  claim,  left  no  legitimate  child 
under  sixteen  years  of  age. 

ACT    OF    JULY    27,     1868. 

SECTION  1.  DEPENDENT  RELATIVES.  —  By  this  section,  precedence 
is  given  to  the  dependent  relatives  hereinafter  mentioned  in  the  fol- 
lowing order,  to  wit,  First,  mothers ;  second,  fathers  ;  third,  orphan 
brothers  and  sisters  under  sixteen  years  of  age,  entitled  jointly  ;  and 
the  title  of  each  of  the  above  classes  of  claimants  accrues  upon  the 
death  of  the  one  preceding. 

SECT.  2.  DISABILITIES  INCURRED  SUBSEQUENT  TO  JULY  27, 1868.  — 
This  section  provides  for  pensions  by  reason  of  disabilities  incurred 
subsequent  to  the  passage  of  this  act,  and  specifies  the  circum- 
stances under  which  said  disabilities  must  have  been  contracted  in 
order  to  effect  a  title. 

SECT.  3.  UNCLAIMED  PENSIONS.  —  This  section  provides  that  pen- 


PENSION  ACTS.  622 

sions  remaining  unclaimed  for  fourteen  months  after  the  same  have 
become  due  may  be  paid  at  the  Pension  Agency  instead  of  at  the 
offices  of  the  Third  and  Fourth  Auditors,  as  heretofore  provided ; 
that  failure  to  claim  such  pension  for  three  years  shall  be  presump- 
tive evidence  that  the  same  has  legally  terminated  ;  and  that  on  a 
new  application,  with  evidence  satisfactorily  accounting  for  such 
failure,  the  pensioner  may  be  restored  to  the  rolls. 

SECT.  4.  INCREASE  OP  PENSIONS  TO  MINORS  BY  FORMER  WIPE.  — 
By  this  section  the  increase  of  two  dollars  per  month  for  each  minor 
child  of  a  deceased  soldier,  provided  for  by  Section  2,  Act  of  July 
25,  1866,  is  extended  to  include  all  the  legitimate  children  of  such 
soldier ;  and  provides  that  the  children  of  a  former  marriage  (the 
soldier  "  leaving  a  widow,  entitled  to  a  pension")  shall  be  "  entitled 
to  receive  two  dollars  per  mouth,  to  commence  from  the  death  of 
their  father,  and  continue  until  they  severally  attain  the  age  of  six- 
teen years,  to  be  paid  to  the  guardian  of  such  child  or  children-  for 
their  use  and  benefit :  Provided,  however ,  That  in  all  cases  where 
such  widow  is  charged  with  the  care,  custody,  and  maintenance  of 
such  child  or  children,  the  said  sum  of  two  dollars  per  month  for 
each  of  said  children  shall  be  paid  to  her  for  and  during  the  time 
she  is,  or  may  have  been,  so  charged  with  the  care,  custody,  and 
maintenance  of  such  child  or  children,  subject  to  the  same  condi- 
tions, provisions,  and  limitations  as  if  they  were  her  own  children 
by  her  said  deceased  husband. 

SECT.  5.  MINOR  CHILDREN  IN  CHARITABLE  INSTITUTIONS. — This  sec- 
tion provides  that  no  widow  or  guardian,  to  whom  an  increase  of 
pension  has  been  or  may  be  granted  on  account  of  minor  children, 
shall  be  deprived  thereof  by  reason  of  their  being  wholly,  or  in  part, 
maintained  or  educated  at  the  expense  of  the  State  or  of  the  public. 

SECT.  6.  EXTENSION  OP  TIME  FOR  APPLICATION.  —  By  this  section, 
all  pensions  applied  for  within  five  years  after  the  right  thereto  shall 
have  accrued,  and  which  have  been  or  may  be  granted  under  the 
Act  of  July  14,  1862,  or  acts  supplementary  thereto,  shall  com- 
mence from  the  discharge  or  death  of  the  person  on  whose  account 
the  pension  has  been  or  shall  be  granted ;  and  in  cases  of  insane 
persons  and  minors,  who  were  without  guardians  or  other  legal  rep- 
resentatives previous  to  said  limitation,  applications  may  be  filed  in 
their  behalf  after  its  expiration.  This  section  applies  only  to  cases 


624  PENSIONS. 

in  which  title  to  pension  has  accrued  subsequent  to  March  4, 1861. 
Allowance  or  arrears,  under  this  section,  is  to  be  graded  in  amount 
according  to  the  original  certificate.  A  pensioner,  under  special  act 
of  Congress,  is  not  entitled  to  arrears  under  this  section. 

SECT.  7.  PAYMENT  OP  ARREARS.  — This  section  provides  for  notifi- 
cation of  title  to  arrears  of  pension  under  the  preceding  section, 
and  that  no  person  shall  be  entitled  to  compensation  for  making 
application  for  such  arrears.  In  order  to  identify  the  claimant,  the 
appropriate  form  should  be  followed  by  applicants  under  Section 
Six,  and  executed  before  a  court  of  record,  as  in  other  cases. 

SECT.  8.  AMENDMENT  OF  SECTION  11,  ACT  OF  JUNE  6, 1866.  —  This 
section  dispenses  with  the  requirement  of  the  certificate  of  the  court 
that  satisfactory  evidence  has  been  adduced  of  the  abandonment  of 
the  care  of  minor  child  or  children  of  a  deceased  soldier  by  his 
widow,  or  of  her  unfitness  to  have  custody  of  them ;  and  that  the 
presentation  of  satisfactory  evidence  thereof  to  the  commissioner 
shall  suffice  for  the  suspension  of  said  widow's  pension. 

SECT.  9.  AMENDMENT  OF  SECTION  6,  ACT  OF  JUNE  6,  1866,  AND 
SECTION  4,  ACT  OF  JULY  25, 1866.  —  By  this  section,  the  title  to  ac- 
crued pension  of  a  person  dying  while  application  is  pending  is 
vested  in  the  heirs  or  legal  representatives,  provided  that  no  widow 
or  minor  child  survives  the  applicant,  and  the  requirement  of  com- 
pletion of  proof  before  death  is  dispensed  with. 

SECT.  10.  PENSION  TO  DATE  OF  REMARRIAGE.  —  This  section  pro- 
vides for  allowance  of  pension  to  widow  (in  case  no  children  under 
sixteen  years  of  age  survive),  or  dependent  mother,  from  death  of 
soldier,  to  date  of  claimant's  remarriage. 

SECT.  11.  EXTENSION  OF  LIMITATION  OF  UNENLISTED  MEN  OR  THEIR 
DEPENDENTS.  —  By  this  section,  the  provisions  of  the  Ninth  Section 
of  the  Act  of  July  4, 1864,  are  continued  in  force  until  July  4, 1872. 

SECT.  12.  PENSION  FOR  Loss  OF  ONE  EYE.  —  This  section  provides 
for  the  allowance  of  a  pension  of  twenty-five  dollars  for  total  loss 
of  sight  by  reason  of  wounds  or  disease  contracted  in  the  service, 
though  the  pensioner  had  the  sight  of  but  one  eye  upon  entering 
the  service. 

SECT.  13.  AMENDMENT  TO  SECTION  3,  ACT  OF  JULY  25, 1866.  — 
This  section  places  all  persons  pensioned  on  account  of  services  ren- 
dered since  the  war  of  the  Revolution,  and  prior  to  March  4, 1861, 


PENSION  ACTS.  625 

on  the  same  footing  with  those  pensioned  under  the  Act  of  July  14, 
1862,  and  acts  subsequent  thereto  ;  and  grants  eight  dollars  per 
month  to  the  widows  of  revolutionary  soldiers  now  pensioned  at 
less  than  that  amount. 

SECT.  14.  ARTIFICIAL  LIMBS  TO  OFFICERS.  —  This  section  entitles 
captains  in  the  army  and  lieutenants  in  the  navy,  and  officers  of 
inferior  rank,  who  have  lost  a  leg  or  arm  in  the  service,  to  receive 
an  artificial  limb  upon  the  same  terms  as  privates  in  the  army. 

SECT.  15.  SPECIAL  ACT  PENSIONS.  —  This  section  provides  that  all 
pensions  granted  under  special  acts  shall  be  graded  in  amount  accord- 
ing to  the  provisions  and  limitations  of  the  general  pension  laws. 

SECT.  16.  REPEALING  CLAUSE.  —  This  section  comprises  the  cus- 
tomary repeal  of  inconsistent  provisions  of  former  acts. 

Declarations  in  applications  for  pensions  under  this  act  should  be 
made  in  accordance  with  the  forms  annexed  to  this  chapter,  and 
invariably  before  a  court  of  record  or  pension  notary. 

A  remark  similar  to  that  made  at  the  close  of  the  Chapter  on 
Patents  may  be  repeated  here.  The  officers  in  Washington  charged 
with  the  duty  of  attending  to  applications  for  pensions  have  every 
disposition  to  facilitate  and  not  to  hinder  the  obtaining  pensions  by 
those  who  ought  to  have  them.  But  the  strict  provisions  of  law,  as 
well  as  the  necessity  of  guarding  against  deception  or  mistake,  com- 
pel them  to  adhere  rigidly  to  the  rules  above  stated,  which  I  have 
taken,  substantially,  from  publications  made  by  those  officers,  for  the 
purpose  of  guiding  and  assisting  applicants.  The  forms  which  fol- 
low are  those  prescribed  by  them.  They  would  be  sent  to  persons 
needing  them,  and  are  usually  supplied  by  pension  agents  ;  and  they 
are  given  here  for  the  guidance  of  those  who  are  so  situated  that 
they  cannot  conveniently  apply  to  pension  agents,  or  prefer  not  to 
do  so. 

(208.) 

Declaration  for  an  Invalid  Pension. 
STATE  (DISTRICT  OR  TERRITORY)  OF 


COUNTY  OF 

On  this  day  of  ,  A.1).  one  thousand  eight 

hundred  and  ,  personally  appeared  before  me,  (here  stale 

the  official  character  of  the  person  administering  the  oath)  within  and  for  the  count/ 


626  PENSIONS. 

and  State  aforesaid,  ,  aged  years,  a  resident 

of  ,  in  the  State  of  ,  who,  being  duly  sworn 

according  to  law,  declares  that  he.  is  the  identical  who  enlisted  hi 

the  service  of  the  United  States  at  ,  on  the  day 

of  ,  La  the  year  ,  as  a  in 

company  ,  commanded  by  ,  in  the 

regiment  of  ,  in  the  war  of  1861,  and  was  honorably  discharged 

on  the  day  of  ,  in  the  year  ; 

that  while  in  the  service  aforesaid,  and  in  the  line  of  his  duty,  he  received  the 
following  wound  (or  other  disability,  as  the  case  may  be),  (here  give  a  particular  and 
minute  account  of  the  wound  or  other  injury,  and  state  how,  when,  and  where  it 
occurred,  where  the  applicant  has  resided  since  leaving  the  service,  and  what  has  been 
his  occupation.) 

My  post-office  address  is  as  follows : 

(Signature  of  claimant.') 

Also  Personally  Appeared  and  ,  residents 

of  (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled 
to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 
sign  his  name  (or  make  his  mark)  to  the  foregoing  declaration ; 
aad  they  further  swear  that  they  have  every  reason  to  believe,  from  the  appear- 
ance of  the  applicant  and  their  acquaintance  with  him,  that  he  is  the  identical 
person  he  represents  himself  to  be ;  and  they  further  swear  that  they  have  no 
interest -in  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186  ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  hi  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.') 


(209.) 
Declaration  for  obtaining  a  Widow's  Army-Pension. 

STATE  (TERRITORY  OR  DISTRICT)  OF  ,  ^ 

>-88. 

COUNTY  OF  ) 

On  this  day  of  ,  A.D.  ,  personally 

appeared  before  me,  ,  of  the  , 

a  resident  of  ,  in  the  County  of  ,  and  State 

(territory  or  district)  of  ,  aged  years,  who  being 

first  duly  sworn  according  to  law,  doth  on  her  oath  make  the  following  declaration 
in  order  to  obtain  the  benefit  of  the  provisions  made  by  the  act  of  Congress  ap- 


FOBMS  OF  DECLARATIONS.  627 

proved  July  14,  1862 :  That  she  is  the  widow  of  ,  who  was  a 

in  company  ,  commanded  bj 

in  the  Kegiment  of  in  the  war  of  1861,  who  (here  specify 

the  time,  place,  and  cause  of  death).     She  further  declares  that  she  was  married  to 
the  said  on  the  day  of  in 

the  year  ;  that  her  husband,  the  aforesaid  , 

died  on  the  day  above  mentioned,  and  that  she  has  remained  a  widow  ever  since 
that  period,  as  will  more  fully  appear  by  reference  to  the  proof  hereto  annexed. 
She  also  declares  that  she  has  not  in  any  manner  been  engaged  in,  or  aided  or 
abetted,  the  Rebellion  in  the  United  States. 
My  post-office  address  is  as  follows : 

(Declarant's  signature.') 

Also  Personally  Appeared  and  ,  residents 

of  (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled 
to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 
sign  her  name  (or  make  her  mark*)  to  the  foregoing  declaration ; 
and  they  further  swear  that  they  have  every  reason  to  believe,  from  the  appearance 
of  the  applicant  and  their  acquaintance  with  her,  that  she  is  the  identical  person 
she  represents  herself  to  be,  and  that  they  have  no  interest  in  the  prosecution  of 

this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186      ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in 

the  prosecution  of  this  claim. 

(Signature  of  Judge  or  other  officer.) 


(210.) 

Declaration  for  Minor   Children  in  order  to  obtain  Army- 
Pensions. 


\ 


STATE  (TERRITORY  OR  DISTRICT)  OF 

COUNTY  OF 

On  this  day  of  .     ,  AD.  ,  personally 

appeared  before  the  of  the  »  >  a 

resident  of  ,  in  the  County  of  ,  and  State  (territory 

or  district)  of  ,  aged  years,  who  being  first  duly 

sworn  according  to  law,  doth  on  oath  make  the  following  declaration,  as  guardian 
of  the  minor  child  of  »  deceased,  in  order  to  obtain  the  benefits 

of  the  provisions  made  by  the  act  of  Congress  approved  July  14,  1862,  granting 
pensions  to  minor  children,  under  sixteen  years  of  age,  of  deceased  officers  and 
soldiers ;  that  he  is  the  guardian  of  ,  (naming  the  minor  child  or  children,  his 


628  PENSIONS. 

ward  or  wards)  whose  father  was  a  in  company  ,  command.. A 

by  ,  in  the  !R"igiment  of  ,  in  the  war 

of  1861,  and  that  the  said  Jied  at  on  the 

day  of  ,  in  the  ye<vf  (here  state  the 

cause  ofdeatJi)  ;  that  the  mother  of  the  child  aforesaid  died  (or 

again  married,  being  now  the  wife  of  )  on  the  day 

of  ,  in  the  year  ;  en-\  tbat  the  date  of  birth  of  his 

said  ward  as  follows : 

He  further  declares  that  the  parents  of  his  said  ward  were 

married  at  ,  on  the  dy  of  ,  in 

the  year  by 

My  postK)ffice  address  is  as  follows : 

(Gun."rf;an'4  signature.) 

Also  Personally  Appeared  and  ,  residents 

of         (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled 
to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 
sign  name  (or  make  his  mark)  to  the  foregoing  decla- 

ration ;  and  they  further  swear  that  they  have  every  reason  to  believe,  from  the 
appearance  of  the  applicant  and  their  acquaintance  with  him,  that  he  is  the  iden- 
tical person  he  represents  himself  to  be,  and  that  they  have  no  interest  in  the 
prosecution  of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186  ,  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 

(211.) 

Declaration  for  Mother's  or  Father9 8  Application  for  Army- 

Pension. 


STATE  (TERRITORY  OR  DISTRICT)  OF 

;  as. 
COUNTY  OF 


1 


On  this  day  of  ,  A.D  ,  personally 

appeared  before  the  of  the  ,  ,  a 

resident  of  in  the  County  of  ,  and  State  (territory 

or  district)  of  ,  aged  years,  who,  being  first  duly 

sworn  according  to  law,  doth  on  oath  make  the  following  declaracion 

in  order  to  obtain  the  benefits  of  the  provisions  made  by  the  act  of  Congress  ap- 
proved July  14,  1862,  and  its  amendments:  That  is  the 
of                          ,  and                          of                          ,  who  was  a 
In  company                              ,  commanded  by                              ,  in  the 


FOBMS  OP  DECLARATIONS.  629 

Regiment  of  ,  in  the  war  of  1861,  who  (here  state  the  time,  place, 

and  cause  of  death). 

further  declares  that  said  son,  upon  whom 

was  wholly  or  in  part  dependent  for  support,  having  left  no  widow  or  minor  child 
under  sixteen  years  of  age  surviving,  declarant  makes  this  application  for  a  pension 
under  the  above-mentioned  act,  and  refers  to  the  evidence  filed  herewith,  and  that 
in  the  proper  department,  to  establish  claim. 

also  declares  that  has  not  in  any  way  been  engaged 

in,  or  aided  or  abetted,  the  Rebellion  in  the  United  States ;  that  is  not 

in  the  receipt  of  a  pension  under  the  second  section  of  the  act  above  mentioned,  or 
under  any  other  act,  nor  has  again  married  since  the  death  of 

eon,  the  said  . 

My  post-office  address  is  as  follows : 

(Declarants  signature.) 

Also  Personally  Appeared  and  ,  residents 

of        (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled 
to  credit,  and  who,  being  by  me  duly  sworn,  say  they  were  present  and  saw 
sign  name  (or  make  mark)  to  the  foregoing  declaration ;  and  they 

further  swear  that  they  have  every  reason  to  believe,  from  the  appearance  of  the 
applicant  and  their  acquaintance  with  ,  that  is  the 

identical  person  represents  to  be,  and  that  they  have  no 

interest  in  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.') 

Sworn  to  and  subscribed  before  me  this  day  of  ,  A.D. 

186      ;   and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  hi  the 

prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 


'\ 


(212.) 
Declaration  of  Orphan  Brotliers  or  Sisters  for  Army-Pension. 

STATE  (TERRITORY  OR  DISTRICT)  OF 

COUNTY  OF 

On  this  day  of  ,  A.D.  .personally 

appeared  before  the  of  the  ,  a 

resident  of  in  the  County  of  ,  and  State  (territory 

or  district)  of  ,  aged  years,  who,  being  first  duly 

sworn  according  to  law,  doth  on  oath  make  the  Mowing  declaration,  in  order  to 
obtain  a  pension  under  the  act  of  July  14,  1862,  and  its  amendments:  That  he  is 
the  legally  appointed  guardian  of  (here  give  the  names  and  ages  of  his  wa~d  or 


630  PENSIONS. 

wards)  who  the  only  surviving  child  ,  under  sixteen  years 

of  age,  of  and  his  wife,  and  of 

,  who  was  a  in  company  ,  com- 

manded by  ,  in  the  Regiment  of  ,  in 

the  war  of  1861,  who  (here  state  the  time,  place,  and  cause  of  his  death).     That  the 
brother  of  his  said  ward  ,  upon  whom  they  are  wholly  or  in  part 

dependent  for  support,  having  left  no  widow,  minor  child  or  children,  declarant  as 
guardian,  and  on  behalf  of  his  ward  ,  refers  to  the  accompanying 

evidence,  and  such  as  may  be  found  in  the  department,  to  establish 
claim  under  the  law  above  named. 

He  further  declares  that  his  said  ward  is  not  in  receipt  of  any 

pension  under  said  act. 

My  post-office  address  is  as  follows : 

(Guardian's  signature.) 

Also  Personally  Appeared  and  ,  residents 

of         (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled 

to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 

sign  name  (or  make  mark)  to  the  foregoing 

declaration ;  and  they  further  swear  that  they  have  every  reason  to  believe,  from 

the  appearance  of  the  applicant  and  their  acquaintance  with  that 

is  the  identical  person  represents  to 

be,  and  that  they  have  no  interest  in  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186      ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 

(213.) 
Declaration  for  the  Increase  of  an  Invalid  Pension* 

( Under  the  First  Section  of  the  supplementary  Pension  Act  of  June  6, 1866.) 
STATE  (TERRITORY  OR  DISTRICT)  OF 

COUNTY  OF 

On  this  day  of  ,  A.D.  18      ,  personally 

appeared  before  me  (describing  the  official  character  of  the  person  administering 

the  oath)  ,  aged  years,  a  resident  of        (naming 

the  town  and  post-office  address),  in  the  County  of  „  ,  and  State 

(territory  or  district)  of  ,  who,  being  duly  sworn  according  to  law, 

declares  that  he  is  a  pensioner  of  the  United  States,  duly  enrolled  at  the 

pension  agency,  at  the  rate  of  $  per  month,  by  reason  of 


FORMS   OF  DECLARATIONS.  631 

disability  incurred  n  the  military  (or  naval )  service  of  the  United  States  (here 
state  the  company  and  regiment,  if  in  the  army,  or  the  vessel  and  rank,  if  in  the  navy), 
and  that  his  present  physical  condition  is  such  that  he  believes  himself  entitled  to 
receive  an  increased  pension  of  the  (first,  second,  or  third")  grade  provided 

for  in  the  First  Section  of  the  supplementary  Pension  Act  approved  June  6,  18C6. 
He  further  declares  that  he  is  disabled  in  the  following  manner,  to  wit  '(here  the 
declarant  will  particularly  set  forth  the  nature  of  his  disability,  and  the  extent  to  which 
he  is  incapacitated  for  manual  labor,  or  dependent  upon  the  personal  aid  and  attend- 
ance of  others) 

(Signature  of  declarant.) 

Also  Personally  Appeared  Before  me,  at  the  time  and  place  aforesaid, 
of  ,  and  of  , 

whom  I  certify  to  be  credible  persons,  who,  being  duly  sworn  according  to  law, 
declare,  each  for  himself,  that  they  well  know  ,  who  signed  the 

foregoing  declaration  in  their  presence,  and  that  he  is  the  identical  person  he  rep- 
resents himself  to  be,  and  that  he  is  disabled  substantially  in  the  manner  alleged  in 
said  declaration.  They  further  swear  that  they,  or  either  of  them,  have  no  interest 
in  this  claim,  either  present  or  prospective,  and  that  they  are  not  concerned, 
directly  or  indirectly,  in  its  prosecution. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  18  ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 


(214.) 

Declaration  of  the  Guardian  of  a  Minor  Child* 

( Under  the  Ekventh  Section  of  the  Act  of  June  6, 1866.) 
STATE  (TERRITORY  OB  DISTRICT)  OF 


/83. 

COUNTY  OF 

On  this  day  of  -        ,  A.D.  ,  personally 

appeared  before  me  (describing  the  official  character  ofthe<person  administering 

the  oath)  ,  aged  years,  a  resident  of        (naming 

town  and  post-office  address),  in  the  County  of  ,  and  State 

(territory  or  district)  of  ,  who,  being  duly  sworn  according  to 

law,  doth  on  oath  make  the  following  declaration,  as  guardian  of  the  minor  child 
(or  children)  of  ,  deceased,  in  order  to  obtain  the  b(  nefits  of 

the  provision  made  by  the  Eleventh  Section  of  the  Act  of  Congress,  approved  Jane 
6,  1866,  and  its  amendments,  granting  pensions  to  minor  children  under  sixteen 
years  of  age,  of  deceased  officers,  soldiers,  or  seamen,  who  have  left  a  widow  still 


632  PENSIONS. 

surviving,  the  latter  having  abandoned  the  care  of  said  children,  or  having  been 
declared  an  unsuitable  person  to  have  charge  of  them.  He  further  declares  that 
he  is  the  guardian  of  (naming  the  minor  child  or  children,  his  ward  or  wards), 

whose  father  was  (here  describe  the  service  of  the  deceased),  in  the  war  of 

1861,  and  that  the  said  died  at  ,  on  the 

day  of  ,  in  the  year  (here  state  the  cause 

of  death),  that  the  mother  of  the  child  (or  children)  aforesaid  has  abandoned  the 
care,  or  is  an  unsuitable  person,  by  reason  of  immoral  conduct  (here  state  what 
specific  conduct  is  referred  to),  to  have  charge  of  the  child  (or  children)  ;  and  that 
the  date  of  birth  of  his  said  ward  (or  wards)  is  as  follows  :  — 

He  (or  she)  further  declares  that  the  parents  of  his  (or  her)  said  ward  (or  wards) 
were  married  at  ,  on  the  day  of  , 

in  the  year  ,  by  . 

(Guardian's  signature.) 

Also  Personally  Appeared  and  ,  residents 

of  (county,  city,  or  town),  persons  whom  I  certify  to  be  respectable,  and 

entitled  to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present 
and  saw  sign  name  (or  maJce  mark)  to  the  fore- 

going declaration ;  and  they  further  swear  that  they  have  every  reason  to  believe, 
from  the  appearance  of  the  applicant,  and  their  acquaintance  with  ,  that 

is  the  identical  person  represents  to  be,  and  that  they 

1  ave  no  interest  in  the  prosecution  of  the  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  18  ;  and  I  hereby  certify  that  I  have  no  ineretst,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 


(215.) 
Widow's  Declaration  for  an  Increase  of  Pension, 

( Under  the  Second  Section  of  Hie  Act  of  July  25, 1866.) 
STATE  (TERRITORY  OR  DISTRICT)  OF 


.•88. 

COUNTY  OF 

On  this  day  ,  A.D.  ,  personally 

appeared  before  me,  of  the  ,  , 

a  resident  of  ,  in  the  County  of  ,  and  State 

(territory  or  district)  of  ,  aged  years,  who,  being  first 

duly  sworn  according  to  law,  doth  on  her  oath  make  the  following  declaration,  in 
order  to  obtain  the  benefit  of  the  provision  made  by  the  Second  Section  of  the  Act 


FORMS  OP  DECLARATIONS.  633 

of  Congress  increasing  the  Pensions  of  Widows  and  Orphans,  approved  July  25, 
1866  :  That  she  is  the  widow  of  ,  who  was  a  in 

company  ,  commanded  by  ,  in  the  Regiment 

of  ,  in  the  war  of  1861 ;  and  that  by  reason  of  his  death  hi 

the  service  aforesaid,  she  has  been  granted  a  pension  of  eight  dollars  per  month, 
in  accordance  with  a  certificate  numbered  ,  bearing  date  . 

She  further  swears  that  she  has  the  following-named  children  of  her  deceased  hus- 
band under  sixteen  years  of  age,  who  are  now  living,  the  dates  of  whose  birth  were 
as  given  below,  to  wit : 

She  further  declares  that  she  has  not  remarried  since  the  death  of  her  said  hus- 
band, nor  has  she  abandoned  the  support  of  any  one  of  the  children  above  named, 
nor  permitted  any  one  of  the  same  to  be  adopted  by  any  other  person  or  persons 
as  his,  her,  or  their  child. 

My  post-office  address  is  as  follows : 

(Declarant's  signature.) 

Also  Personally  Appeared  and  ,  resi- 

dents of  (county,  city,  or  town),  persons  whom  I  certify  to  be  respectable,  and 
entitled  to  credit ;  and  who,  being  by  me  duly  sworn,  say  that  they  were  present 
and  saw  sign  her  name  (or  make  her  mark)  to  the  foregoing  declaration ; 

and  they  further  swear  that  they  have  every  reason  to  believe,  from  the  appearance 
of  the  applicant,  and  their  acquaintance  with  her,  that  she  is  the  identical  person 
she  represents  herself  to  be,  and  that  they  have  no  interest  in  the  prosecution  of 
this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me,  this  day  of 

A.D.  186  ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 


(216.) 
Guardian's  Declaration  for  Increase  of  Pension. 

( Under  the  Second  Section  of  the  Act  of  July  25,  1866.) 
STATE  (TERRITORY  OR  DISTRICT)  OF 


: 


/SB. 
COUNTY  OF 

On  this  day  of  ,  A.D.  ,  personally 

appeared  before  me,  of  the  ,  , 

a  resident  of  ,  and  State  (territory  or  district)  of  , 

aged  years,  who,  being  duly  sworn  according  to  law,  doth  on 

oath  make  the  following  leclaration,  in  order  to  obtain  the  benefit  of  the  provision 


634  PENSIONS. 

made  by  tlie  Second  Section  of  the  Act  of  Congress  increasing  the  Pensions  of 
"Widows  and  Orphans,  approved  July  25, 1866  :  That  (he  or  she)  is  the  guardian  of 
(naming  the  minor  child  or  children,  ward  or  wards),  whose  father  was  a 
in  company  ,  commanded  by  ,  in  the 

Eegiment  of  ,  in  the  war  of  1861,  and  that  the  said        (naming 

the  father)  died  at  ,  on  the  day  of  , 

in  the  year  (here  state  the  cause  of  death)  ;  that  the  mother  of  the  child 

aforesaid  died  (or  again  married,  being  now  the  wife  of  ), 

on  the  day  of  ,  in  the  year  ;  and 

that  the  dates  of  birth  of  the  said  (minor  child  or  children,  ward  or  wards) 

were  as  follows,  to  wit : 

He  (or  she)  further  declares  that  the  parents  of  the  said  (minor  child  of 

children,  ward  or  wards)  were  married  at  ,  on  the 

day  of  ,  in  the  year  ,  by  ,  and  that 

the  maiden  name  of  their  mother  was  . 

My  post-office  address  is  as  follows : 

(Guardian's  signature.) 

Also  Personally  Appeared  and  ,  residents 

of  (county,  city,  or  town),  persons  whom  I  certify  to  be  respectable,  and 

entitled  to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present 
and  saw  sign  (his  or  her)  name  (or  make  his  or  her  mark)  to  the 

foregoing  declaration ;  and  they  further  swear  that  they  have  every  reason  to 
believe,  from  the  appearance  of  the  applicant,  and  their  acquaintance  with  (him  or 
Tier,)  that  (he  or  she)  is  the  identical  person  (he  or  she)  represents  (himself  or  her- 
self)  to  be,  and  that  they  have  no  interest  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

A.D.  186  ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 

(217.) 
Declaration  for   Widow's  Pension   and  Increase. 

(Under  the  Act  of  July  14,  1862,  and  supplementary  Act  of  July  25, 1866.) 

STATE  or 


/ss. 
COUNTY  OP 


: 


On  this  day  of                           ,  A.D.                     ,  personally 

appeared  before  me,  a  of  a  court  of  record  in  and  for  the  county 

and  State  aforesaid,  a  resident  of                                    ,  in  the 

County  of  ,  and  State  of                              ,  aged 


FORMS   OF  DECLARATIONS.  635 

years,  who,  being  duly  sworn,  makes  the  following  declaration,  in  order  to  obtain 
the  pension  provided  by  the  act  of  Congress,  approved  July  14,  1862  :  That  she  is 
the  widow  of  ,  who  was  a  in  company  , 

commanded  by  ,  in  the  Regiment  of  , 

in  the  war  of  1861 ;  that  her  maiden  name  was  ,  and  that  she 

was  married  to  said  on  or  about  the  day  of 

,  A.D.  ,  at  ,  in  the  County 

of  ,  and  State  of  ,  by  ,  and 

that  there  is  record  evidence  of  marriage. 

She  further  declares  that  saic]  ,  her  husband,  died  in  the 

service  of  the  United  States,  aa  aforesaid,  at  ,  hi  the  State 

of  ,  on  or  about  the  day  of  , 

A.D.  ,  of 

She  also  declares  that  she  has  remained  a  widow  ever  since  the  death  of  said 
,  and  that  she  has  the  following-named  children  of  her 

deceased  husband,  under  sixteen  years  of  age,  who  are  now  living,  the  dates  of 
whose  births  are,  as  given  below,  to  wit : 

She  further  declares  that  she  has  not  abandoned  the  support  of  any  one  of  the 
children  above  named,  nor  permitted  any  one  of  the  same  to  be  adopted  by  any 
person  or  persons ;  that  they  are  the  only  legitimate  children  of  herself  and  tho 
deceased,  and  that  she  has  not  in  any  manner  been  engaged  hi  or  aided  or  abetted, 
the  Rebellion  in  the  United  States. 

My  posfr-office  address  is  . 

(Signature  of  claimant;; 

Also  Personally  Appeared  ,  and  ,  residents 

of  ,  County  and  State  of  ,  to  me  well  known  as 

credible  persons,  who,  being  duly  sworn,  declare  that  they  were  present  and  saw 
said  sign  her  name  to  the  foregoing  declaration,  and  that  they 

have  every  reason  to  believe,  from  the  appearance  of  said  applicant,  and  their 
acquaintance  with  her,  that  she  is  the  identical  person  she  represents  herself  to  be, 
and  know  that  said  deceased  recognized  the  said  applicant  as  his  lawful  wife,  and 
that  she  was  so  recognized  in  the  community  in  which  they  resided ;  and  they  fur- 
ther declare  that  they  know  the  fact  that  she  has  not  remarried,  but  is  still  a  widow, 
and  that  she  has  not  abandoned  the  support  of  any  one  of  the  said  children,  and 
that  her  statement  in  reference  to  the  same  is  true  to  their  personal  knowledge, 
and  that  they  have  no  interest,  direct  or  indirect,  in  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of  , 

A.D.  ;  and  I  hereby  certify  that  the  contents  of  the  above  were  made 

known  and  explained  to  the  applicant  and  witnesses  before  signing,  and  that  I  have 
no  interest,  direct  or  indirect,  in  the  prosecution  of  this  claim. 

(Seal.)  (Official  signature.) 


636  PENSIONS. 

•          (218.) 

Declaration  for  Restoration  to  tlie  Rolls. 

( Under  Section  3,  Act  July  27, 1868.) 
STATE  (TERRITORY  OR  DISTRICT)  OF 


,83. 

COUNTY  OF 

On  this  day  of  ,  A.D.  one  thousand  eight 

hundred  and  ,  personally  appeared  before  me  (here  state  the 

official  character  of  the  person  administering  the  oatJi),  within  and  for  the  county 
and  State  aforesaid,  ,  aged  years,  a  resident 

of  ,  in  the  State  of  ,  who,  being  duly  sworn 

according  to  law,  declares  that  is  the  identical  to 

whom  was  granted  pension  certificate  No.  ,  payable  at  ,  dated 

the  day  of  ,  in  the  year  ;  that  having 

failed  since  the  day  of  ,  18       ,  by  reason  of 

(J/ere  state  the  causes  of  such  neglect)  ,  to  apply  for  the  payment  due 

upon  said  certificate,  and  thereby  been  deprived  of  the  same  under  the  Third  Section 
of  the  Act  of  July  27,  1868,  makes  this  declaration  in  order  to 

secure  restoration  to  the  pension-rolls  and  a  new  certificate, 

returning  herewith  the  original. 

post-office  address  is  as  follows : 

(Signature  of  claimant.') 

Also  Personally  Appeared  and  ,  residents 

of  (county,  city,  or  town),  persons  whom  I  certify  to  be  respectable,  and 

entitled  to  credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present 
and  saw  sign  name  (or  make  his  or  her  marty  to  the 

foregoing  declaration;   and  they  further  swear  that  they  have  every  reason  to 
believe,  from  the  appearance  of  the  applicant,  and  their  acquaintance  with  , 

that  is  the  identical  person  represents         self  to  be ;  and  they  further 

swear  that  they  have  no  interest  in  the  prosecution  of  this  claim. 

(Signatures  of  tcitnesses.') 

Sworn  to  and  subscribed  before  me  this  day  of  , 

A.D.  186     ;  and  I  hereby  certify  that  1  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  oilier  officer.) 

NOTE.  —  In  cases  of  invalid  pensioners,  a  certificate  of  a  pension  surgeon  will 
be  required  that  the  disability  still  continues,  except  in  cases  of  loss  of  limbs  and 
of  the  eyes. 

Widows  and  mothers  shonld  depose  as  to  continuance  of  widowhood. 


FORMS  OF  DECLARATIONS  637 

(219.) 
Declaration  for  Arrears  of  Pensions. 

( Under  Sections  6  and  10,  Act  of  July  27, 1868.) 
STATE  (TERRITORY  OR  DISTRICT)  OF 


:f 


83. 

COUNTY  OF 

On  this  day  of  ,  A.D.  one  thousand  eight 

hundred  and  ,  personally  appeared  before  me  (here  state  the 

official  character  of  the  person  administering  the  oatit),  within  and  for  the  county  and 
State  aforesaid,  ,  aged  years,  a  resident 

of  ,  in  the  State  of  ,  who,  being  duly  sworn 

according  to  law,  declares  that  is  the  identical  to  whom 

was  granted  pension  certifiate  No.  ,  payable  at  the  agency  at 

and  dated  ;  that  under  the  limitations  of  the  Act  of 

was  denied  a  pension  from  the  date  of  the   (remarriage),  death,  or  discharge 
of  ;  and  believing  entitled  to  the  same,  under 

the  Section  of  the  Act  of  July  27,  1868,  makes  this 

declaration  in  order  to  secure  the  arrears  accrued  thereunder, 
post-office  address  is  as  follows  : 

(Signature  of  claimant.) 

Also  Personally  Appeared  and  residents 

of  (county,  city,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled  to 

credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 

sign  name  (or  make  mark)  to  the  foregoing  declaration ;  and 

they  further  swear  that  they  have  every  reason  to  believe,  from  the  appearance  of 

the  applicant  and  their  acquaintance  with  that  is  the  identical  person 

represents  self  to  be ;  and  they  further  state  that  they  have  no  interest 

in  the  prosecution  of  this  claim. 

(Signatures  of  witnesses.') 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186    ;  and  I  hereby  certify  that  I  have  no  interest,  direct  or  indirect,  in  the 
prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 

Invalid  applicants  under  Section  Six  should  depose  as  to  length  of 
time  they  were  employed  in  the  civil  service  of  the  government 
between  March  3, 1865,  and  June  6, 1866. 


638  PENSIONS. 


(220.) 
Declaration  for  Increase  of  Pension. 

( Under  Section  TJiirteen,  Act  of  July  27, 1868.) 


:\ 


STATE  (TERRITORY  OR  DISTRICT)  OF 

>-8S. 
COUXTY  OF 

On  this  day  of  ,  A.D.  one  thousand  eight  hun- 

dred and  personally  appeared  before  me  (here  state  the  official 

character  of  the  person  administering  the  oath)  within  and  for  the  County  and  State 
aforesaid,  aged  years,  a  resident  of 

in  the  State  of  who,  being  duly  sworn  according  to  law,  declares 

that  is  the  identical  to  whom  was  granted  pension 

certificate  No.  payable  at  at  the  rate  of 

dollars  per  month,  issued  under  the  Act  of  18         ;  that 

makes  this  declaration  in  order  to  secure  the  increase  of         pension  to  which 
is  entitled  under  the  Thirteenth  Section  of  the  Act  of  July  27,  18G8. 

My  post-office  address  is  as  follows : 

(Declarant's  signature.) 

Also  Personally  Appeared  and  residents  of 

(county,  cify,  or  town)  persons  whom  I  certify  to  be  respectable,  and  entitled  to 

credit,  and  who,  being  by  me  duly  sworn,  say  that  they  were  present  and  saw 

sign  name  (or  make  mark)  .to  the  foregoing  declaration ;  and 

they  farther  swear  that  they  have  every  reason  to  believe,  from  the  appearance  of 

the  applicant  and  their  acquaintance  with  that  is  the  identical  person 

represents  self  to  be,  and  that  they  have  no  interest  in  the  prosecution 

of  this  claim. 

(Signatures  of  witnesses.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186     ;  and  I  hereby  certify  that  1  have  no  interest,  direct  or  indirect,  in  the 

prosecution  of  this  claim. 

(Signature  of  judge  or  other  officer.) 

Widows  should  depose  that  they  have  not  remarried. 


(221.) 
Form  of  Surgeon's  Affidavit.    Navy  Claims. 

If  the  claimant  for  a  pension  has  not  been  examined,  and  the 
degree  of  his  disability  certified,  before  his  discharge,  by  a  navy 


POEM   OF   StTRGEON'S  AFFIDAVIT.  639 

surgeon,  and  if  the  certificate  of  a  navy  surgeon  or  a  board  of  survey 
is  not  obtainable,  on  satisfactory  explanation  of  this  fact,  he  may 
produce  the  affidavit  of  two  surgeons  reputable  in  their  profession, 
and  certified  as  such  by  the  magistrate  before  whom  their  statement 
is  sworn  to,  in  accordance  with  the  following  form  :  — 

(Dale.) 

It  is  hereby  certified  that  .  who  was  a  in  the 

naval  service  of  the  United  States  (here  state  the  vessel  or  station  on  which  applicant 
was  engaged,  and  his  particular  service*)  is  suffering  from  (Jiere  give  a  particular 
description  of  the  wound,  injury,  or  disease,  and  specify  in  what  manner  it  has  affected 
the  applicant  so  as  to  produce  disability  in  the  degree  stated)  and  he  is  thereby  not 
only  incapacitated  for  naval  duty,  but,  in  the  opinion  of  the  undersigned,  is 
("  three-fourths,"  "  one-half,"  "  one-third,"  fyc.,  or  "  totally"  as  the  case  may  be)  dis- 
abled from  obtaining  his  subsistence  from  manual  labor.  And  we  further  certify 
that  upon  satisfactory  evidence,  and  after  accurate  examination,  we  believe  the  said 
disability  was  incurred  in  the  naval  service  of  the  United  States,  and  in  the  line  of 
duty. 

(  ,  Surgeon.) 

(  ,  Surgeon.) 

Sworn  to  and  subscribed  before  me  this  day  of 

A.D.  186     ;  aud  I  hereby  certify  that  the  said  and 

are  known  to  me  as  surgeons  in  actual  practice,  reputable  in  their  profession,  and 
that  I  have  no  interest,  direct  or  indirect,  in  the  prosecution  of  this  claim. 

(Magistrate's  signature.) 

GUARDIAN'S  CLAIMS   UNDER   SECTION  4,  ACT   OF  JULY  87,  1868. 

Guardians,  in  applying  on  account  of  minor  children  of  a  soldier 
whose  widow  is  entitled  to  pension,  may  present  their  claim  under 
the  Fourth  Section  of  the  Act  of  July  27, 1868,  in  accordance  with 
Form  210,  with  such  obvious  changes  as  the  nature  of  the  case  may 
demand. 

'  SPECIAL  ACT  CASES. 

In  cases  authorized  by  special  acts  of  Congress,  formal  declara- 
tions from  the  claimants  thereunder  are  required,  as  in  cases  under 
the  general  law. 


640  THE  DISPOSAL  OF  PBOPEKTY  BY  WILL. 

CHAPTER   XXXYIH. 

01?    THE    r>IS3?08-AJL,    OF    PROPERTY    BY 

SECTION  I. 
OF    WILLS. 

FEW  persons  are  aware  how  very  difficult  it  is  to  make  an  unob- 
jectionable will.  Inhere  is  nothing  one  can  do,  in  reference  to  which 
it  is  more  certain  that  he  needs  legal  advice,  and  that -of  a  trust- 
worthy kind.  Eminent  lawyers,  not  practised  in  this  peculiar 
branch  of  the  law,  have  often  failed  in  making  their  own  wills, 
both  in  England  and  in  this  country.  And  there  are  seldom  blank 
forms  for  wills  printed  and  sold,  as  there  are  for  deeds  and  leases. 
Nevertheless,  it  may  happen  that  one  is  called  upon  to  make  his 
own  will,  or  a  will  for  his  neighbor,  under  circumstances  which  do 
not  admit  of  delay ;  or  he  may  have  some  interest  in  the  will  of  a 
deceased  person,  and  questions  may  have  arisen,  which  some  knowl- 
edge of  legal  principles  will  answer.  We  shall  try  to  state  here 
what  may  be  of  use  in  such  cases ;  and  shall  append  a  form  for  a 
will. 

Any  person  of  sound  mind  and  proper  age  may  make  a  will.  A 
married  woman  cannot,  unless  in  relation  to  trust  property,  whereof 
the  trust  or  marriage  settlement  reserves  to  her  this  power ;  or  the 
statute  law  of  her  State  gives  it,  as  is  the  case  now  in  many  States. 

One  must  be  of  full  age  in  order  to  devise  real  estate.  But  in 
most  of  our  States  minors  may  bequeath  personal  property ;  and  a 
frequent  limitation  of  the  age  for  such  bequest  is  eighteen  years  for 
males,  and  sixteen  years  for  females. 

The  testator  should  say  distinctly,  in  the  beginning  of  the  instru- 
ment, that  it  is  his  last  ivill.  If  he  has  made  other  wills,  it  is  usual 
and  well  to  say,  "  hereby  revoking  all  former  wills;"  but  the  law 
gives  effect  to  a  last  will  always. 


WILLS.  611 

It  should  close  with  the  words  of  attestation :  "  In  witness  where- 
of, I  have  hereunto.signed  and  sealed  this  instrument,  and  published 
and  declared  the  same  as  and  for  my  last  will,  at  on  this 

day  of  ."  Then  should  follow  the  signature 

and  seal ;  for  this  latter,  although  not  always  required  by  law,  is 
usually  and  properly  affixed. 

The  witnessing  part  is  very  material.  The  requirements  in  the 
different  States  are  not  precisely  alike  ;  but  they  are  all  intended  to 
secure  such  attestation  as  will  leave  the  fact  of  the  execution  of  the 
will,  and  its  publication  as  such,  beyond  doubt.  In  a  very  few 
States,  it  is  enough  if  the  signature  be  proved  by  credible  witnesses, 
although  there  be  no  witnesses  who  subscribed  their  names  to  the 
will.  In  many,  two  subscribing  witnesses  are  enough.  But  in  some 
it  is  necessary,  and  in  all  I  recommend,  that  the  testator  should 
ask  three  disinterested  persons  to  witness  his  will ;  and  should  then, 
in  their  presence,  sign  and  seal  it,  and  declare  it  to  be  his  will ;  and 
they  should  then,  each  in  the  presence  of  the  testator  and  of  the 
other  witnesses,  sign  his  name  as  witness. 

Each  should  see  the  execution  which  he  says  he  witnesses ;  and 
the  signing  by  the  witnesses  should  all  be  seen  by  the  testator ;  but 
the  law  is  satisfied  if  the  thing  is  done  near  the  testator,  and  where 
he  can  see  if  he  chooses  to  look.  If  the  testator  is  too  feeble  to 
write  his  name,  let  him  make  his  mark ;  and  for  this  purpose  any 
mark  is  enough,  although  a  cross  is  commonly  made.  So,  if  a  wit- 
ness cannot  write  his  name,  he  may  make  his  mark ;  but  this  should 
be  avoided  if  possible. 

Over  the  witnesses'  names  should  be  written  their  attestation  ;  and 
any  alteration  in  the  will  should  be  noticed.  If  the  attestation  be  in 
the  following  words,  it  will  be  safe  in  any  part  of  this  country :  — 

"  At  on  this  day  of  the  above- 

named  signed  and  sealed  this  instrument,  and  published 

and  declared  the  same  as  and  for  his  last  will ;  and  we,  in  his  pres- 
ence, and  at  his  request,  and  in  the  presence  of  each  other,  have 
hereunto  subscribed  our  names  as  witnesses." 

Witnesses  should  be  selected  with  care,  where  that  is  possible ; 
for  if  any  question  arises  about  the  testator's  sanity,  or  any  thing  of 
the  kind,  their  evidence  is  first  to  be  taken,  and  is  very  important. 


642  THE  DISPOSAL  OF  PROPERTY  BY  WIL.L. 

But  any  persons  competent  to  do  ordinary  acts  of  business  may  be 
witnesses.  Nor  do  the  usual  disqualifications  for  business  apply. 
Thus,  married  women  and  minors  may  be  witnesses  of  wills.  But 
no  person  should  be  called  upon  to  witness  a  will  who  is  a  legatee, 
or  an  executor,  or  otherwise  interested  in  the  will.  If  such  a  person 
were  a  witness,  it  might  not  avoid  the  will ;  but  a  legatee  would 
lose  or  be  obliged  to  renounce  his  legacy ;  and,  generally,  it  might 
lead  to  unintended  results.  What  was  said  in  relation  to  deeds,  of 
witnesses  remembering,  <fec.,  or  proof  of  handwriting  in  case  of  their 
death  or  absence,  is  true  also  of  wills. 

As  to  the  body  of  the  will,  the  testator  must  express  his  wishes  as 
clearly  and  accurately  as  possible ;  and,  unless  he  has  good  legal 
advice,  he  should  make  the  disposition  of  his  property  as  simple  as 
possible. 

The  word  "  bequeath  "  applies,  properly,  to  personal  estate  only  ; 
the  word  "  devise,"  to  real  estate  only.  It  is  safe  enough  to  begin, 
"  I  give,  bequeath,  and  devise  my  estate  and  property,  as  follows : 
that  is  to  say," — and  then  go  on  and  tell  what  shall  be  done  with 
this  and  that  piece  of  property,  or  sum  of  money. 

"Words  of  inheritance  should  be  added  to  any  devise  of  land  (if 
not  intended  for  the  life  of  the  devisee  only),  as  was  said  in  refer- 
ence to  deeds  ;  although  they  are  not  required  in  wills  so  perempto- 
rily as  in  deeds.  The  words  of  inheritance  are,  —  To  A  B  "  and  his 
heirs." 

If  it  is  intended,  as  usually  is  the  case,  that  the  will  should  apply 
to  all  the  real  estate  possessed  by  the  testator  at  the  time  of  his 
death,  although  purchased  after  the  will  is  made,  there  should  be  a 
clause  expressing  this  intention. 

If  children  are  not  provided  for  in  a  will,  the  law  presumes  they 
were  forgotten  ;  and  it  gives  to  any  such  child  the  same  share  as  if 
there  were  no  will,  unless  the  omission  is  explained  and  accounted 
for  in  the  will,  in  such  wise  as  to  show  that  it  was  intentional.  The 
same  rule,  applies,  quite  generally,  to  the  issue  of  a  deceased  child. 
If  the  child  were  provided  for  in  the  lifetime  of  the  father,  the  law, 
generally,  might  not  presume  that  he  was  forgotten  ;  it  is  best,  how- 
ever, tc  guard  against  any  question  of  the  kind,  by  naming  the  chil- 
dren, and  giving  them  a  small  sum,  or  saying  that  the  omission  to 
give  them  any  thing  is  intentional. 


CODICILS.  —REVOCATION  OF  WILLS.  643 

A  testator  should  always  name  his  executors ;  but  the  will  is  per- 
fectly good  without  any  executor  being  named,  for  the  court  of  pro- 
bate will  appoint  an  "  administrator  with  the  will  annexed." 


SECTION  II. 

CODICILS. 

A  CODICIL  is  a  little  additional  will.  That  is,  it  is  a  testamentary 
disposition,  not  revoking  the  former  will,  but  varying  it  in  some 
way,  or  making  changes  in  it.  There  can  be  but  one  will,  and  that 
the  last ;  but  there  may  be  any  number  of  codicils,  all  valid.  The 
changes  made  by  a  codicil  in  a  will,  or  in  former  codicils,  should  be 
very  distinctly  stated ;  and  some  words  like  these  should  be  vised : 
"  I  hereby  expressly  confirm  my  former  will,  dated 
excepting  so  far  as  the  disposition  of  my  property  is  changed  by  this 
codicil."  And  the  codicil  should  be  called,  at  the  beginning  and 
end,  a  codicil,  and  executed  and  witnessed  in  the  same  manner  as  a 
will. 

If  a  codicil  gives  one  a  legacy,  who  has  already  ono  by  the  will, 
the  codicil  should  state  whether  it  gives  the  second  legacy  instead 
of  the  first,  or  in  addition  to  it.  And  if  advances  are  made  to  a 
child  during  life,  there  should  be  an  indorsement  on  the  will  (but  a 
statement  in  the  will  or  codicil  would  be  better),  stating  whether 
these  advances  are  to  be  charged  to  him,  and  in  what  way,  whether 
with  interest,  <fec. 


SECTION  IIL 

REVOCATION    OF    WHXS. 

THE  law  concerning  the  revocation  of  a  will  is  quite  nice  and  tech- 
nical. A  codicil,  we  have  seen,  does  not  revoke,  and  a  new  will  does. 
So  might  tearing  off  the  name  ;  but  then  the  question  might  come,  who 
tore  it  off.  It  is  best  to  leave  neither  this  nor  any  other  question  ; 
and  therefore  to  destroy  a  will  which  it  is  intended  to  revoke.  If 


644  THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

the  will  is  out  of  the  testator's  reach  and  power,  and  so  cannot  be 
destroyed,  it  would  be  best  to  make  a  new  will,  revoking  the  old 
one  ;  .which  any  testator  can  always  do. 

A  will  is  revoked  by  the  operation  of  law,  if  the  testator  afterwards 
marry  and  have  a  child.  If  the  testator,  after  this,  intends  that  his 
will  shall  take  effect,  he  should  expressly  confirm  it ;  and  the  correct 
way  to  do  this  would  be  by  making  a  new  will.  If  he  leaves  any 
thing  to  his  wife,  and  intends  that  she  should  have  it  instead  of 
dower,  or  of  the  additional  rights  which  recent  statutes  in  some  of 
the  States  have  given  her,  he  should  say  so.  And  then  she  will  not 
have  both,  but  may  choose  between  the  provision  of  the  law  and 
that  of  the  will,  taking  whichever  she  prefers,  and  leaving  the 
other. 

For  the  rights  of  the  wife  or  widow  in  the  several  States,  I  refer 
back  to  the  abstract  of  the  statutes  of  the  several  States,  in  Chapter 
Y.  from  page  17  to  36. 

It  is  impossible  to  do  more  than  to  give  such  forms  and  rules  as 
will  be  applicable  to  all  wills,  and  enable  any  person  to  draw  a  sim- 
ple will  with  safety.  No  one  can  express  accurately  provisions  for 
trust  estates,  remainders,  executory  devices,  &c.,  without  knowing 
the  law  on  these  subjects,  —  and  this  is  an  extensive  and  difficult 
department  of  the  law.  All  that  is  necessary,  and  may  be  relied 
upon  as  generally  sufficient,  is  as  follows :  — 


(222.) 
Form  of  a   Will. 

I,  of  (place  and  occupation),  make  this  my  last  will.    I  give,  devise,  and 

bequeath  my  estate  and  property,  real  and  personal,  as  follow  e,  that  is  to  say :  — 

Then  follow  all  the  provisions  and  disposition  of  property  which 
the  testator  intends,  stated  fully,  plainly,  and  as  accurately  as  pos- 
sible, paying  due  regard  to  the  rules  and  principles  laid  down  in  the 
chapter  of  this  book  on  this  subject.  And  if  these  provisions  are 
carefully  presented  in  distinct  and  intelligible  language,  the  courts 
will  generally  supply  whatever  of  technicality  is  wanting.  Then 


EXECUTORS  AND  ADMINISTRATORS.  645 

follows,  first,  the  appointment  of  an  executor,  and  then  the  execu- 
tion, and  finally  the  declaration  of  the  witnesses,  thus  :  — 

I  appoint  (name,  residence,  and  occupation)  executor  (or  executors  if  more  than 
one  be  desired)  of  this  my  will. 

In  witness  whereof,  I  have  signed  and  sealed  and  published  and  declared  this 
instrument  as  my  will,  at  (place),  on  (date). 

(Signature.)     (Seal.) 

The  said  at  said  (place),  on  said  (day),  signed  and  sealed  this  instrument, 

and  published  and  declared  the  same  as  and  for  his  last  will.  And  we,  at  his  re- 
quest, and  in  his  presence,  and  in  the  presence  of  each  other,  have  hereunto  written 
our  names  as  subscribing  witnesses. 

(Here  follow  the  names  of  three  witnesses.) 
A  codicil  should  be  written  thus  :  — 

I,  of  (place  and  occupation),  do  make  this  my  codicil,  hereby  confirming 

my  last  will  made  on  the  (date  of  the  will),  and  all  my  former  codicils  (if  there 
be  any),  so  far  as  this  codicil  is  consistent  therewith ;  and  do  hereby  — 

Then  follows  whatever  disposition  the  testator  chooses  to  make, 
stating  and  describing  it  as  he  would  if  it  were  a  will,  and  execut- 
ing it  and  having  it  attested  in  the  same  manner  as  if  it  were  a  will, 
excepting  that,  instead  of  calling  it  a  will,  wherever  that  word  oc- 
curs, he  says,  "  codicil  "  instead  of  "  will." 


CHAPTER    XXXIX. 


AN  executor  is  a  person  named  in  the  will  of  a  deceased  person, 
to  settle  his  or  her  estate.  There  may  be  one  or  more  ;  and  they 
may  be  male  or  female.  An  administrator  is  one  appointed  by  the 
court  to  settle  the  estate  of  a  deceased  person.  If  the  deceased  left 
a  will,  but  did  not  appoint  an  executor,  or  the  appointed  executor 
refuses  to  act,  or  resigns  or  dies,  or  for  'any  reason  fails  to  act,  an 
administrator  is  appointed  by  the  court  "  with  the  will  annexed." 
The  husband  of  a  deceased  wife,  or  the  wife  of  a  deceased  husband, 


646  EXECUTOKS  AND  ADMINISTRATORS. 

has  generally  the  right  to  be  appointed  administrator ;  after  them 
the  next  of  kin  in  the  order  of  relationship.  But  the  courts  have 
some  discretion  in  the  matter. 

They  act  as  the  personal  representatives  of  the  deceased,  having 
in  their  hands  his  means,  for  the  purpose  of  discharging  his  liabili 
ties,  or  executing  his  contracts,  and  of  carrying  into  effect  his  will, 
if  he  have  left  one  ;  and,  in  general,  they  are  liable  only  so  far  as 
these  means  (called  assets'),  in  their  hands,  are  applicable  to  such  a 
purpose.  But  they  may  become  personally  liable  ;  and  a  clause  in 
the  statute  of  frauds  refers  to  this  subject,  making  them  not  liable 
to  pay  any  debt  out  of  their  own  means,  unless  they  give  a  promise 
to  that  effect,  in  writing,  signed  by  them. 

In  this  country,  the  judicial  officer,  or  judge  who  has  the  charge  of 
the  settlement  of  estates,  of  the  proof  of  wills,  and  of  proceedings 
under  them,  is  generally  called  the  Judge  of  Probate.  But  in  some 
States  he  is  called  Surrogate,  Register  or  Registrar  of  Wills  or  of  Pro- 
bate, Judge  of  the  Orphan's  Court,  &c.  His  powers  and  duties  are 
very  similar  all  over  the  country.  From  his  decrees  or  decisions 
an  appeal  may  generally  be  taken,  by  a  party  who  thinks  himself 
aggrieved,  to  the  Supreme  Judicial  Court.  The  Judge  of  Probate 
is  usually  a  county  officer,  and  his  jurisdiction  is  limited  to  his 
county. 

If  an  executor  or  administrator  receives,  as  such,  a  promissory 
note  or  bill  of  the  deceased,  and  indorses  the  same  with  his  name, 
without  adding  "  executor  "  or  "  administrator,*'  he  is  liable  upon 
it  personally.  If  he  makes  a  note  or  bill,  signing  it,  "  as  ex- 
ecutor," he  is  personally  liable,  unless  he  expressly  limits  his 
promise  to  pay,  by  the  words,  "  out  of  the  assets  of  my  testa- 
tor," or, "  if  the  assets  be  sufficient,"  or  in  some  equivalent  way ; 
but  a  note  or  bill  so  qualified  would  not  be  negotiable,  because  on 
condition.  If  an  executor  or  administrator  submits  a  disputed 
question  to  arbitration,  in  general  terms,  and  without  an  express 
limitation  of  his  liability,  and  the  arbitrators  award  that  he  shall  pay 
a  certain  sum,  he  is  liable  to  pay  it  whether  he  has  assets  or  not 
But  if  the  award  be  merely  that  a  certain  sum  is  due  from  the  estate 
of  the  deceased,  without  saying  that  the  executor  or  administrator 
is  to  pay  it,  he  is  not  precluded  from  denying  that  he  has  assets. 


EXECUTORS  AND  ADMINISTRATORS.  647 

Where  the  will  of  the  deceased  is  of  an  executory  nature,  and  the 
personal  representative  can  fairly  and  sufficiently  execute  all  thai 
the  deceased  could  have  done,  he  may  do  so,  and  enforce  the  con- 
tract. But  where  an  executory  contract  is  of  a  strictly  personal 
nature  —  as,  for  example,  with  an  author  for  a  specified  work,  or 
with  an  artist  for  a  painting,  the  death  of  the  writer  before  his  book 
is  completed,  or  of  the  artist  before  the  painting  is  finished,  abso- 
lutely determines  the  contract,  unless  what  remains  to  be  done — 
as,  for  example,  in  the  case  of  a  book,  the  preparing  of  an  index,  or 
table  of  contents,  &c.,  can  certainly  be  done  as  well  and  to  the  same 
purpose  and  effect  by  another. 

.  If  executors  or  administrators  pay  away  money  of  the  deceased 
by  mistake,  or  enter  into  contracts  for  carrying  on  his  business  for 
the  benefit  of  his  personal  estate,  and  to  wind  up  his  affairs,  they 
may  sue  on  such  contracts  either  in  their  individual  or  their  repre- 
sentative capacities ;  but  they  should  sue  in  the  latter  capacity,  in 
order  to  avoid  a  set  off  against  them  of  their  individual  debts. 

The  title  of  an  administrator  does  not  exist  until  the  grant  of 
administration.  Then  it  goes  back  to  the  death  of  the  deceased ; 
but  only  in  order  to  protect  the  estate,  and  not  for  any  other  pur- 
pose. And  if  an  agent  sells  goods  of  the  deceased,  after  his  death, 
and  in  ignorance  of  his  decease,  the  administrator  may  adopt  the 
contract,  and  sue  upon  it. 

On  the  death  of  one  of  several  executors,  either  before  or  after 
probate,  the  entire  right  of  representation  survives  to  the  others. 
But  if  an  administrator  dies,  or  a  sole  executor  dies,  no  interest 
and  no  right  of  representation  is  transmitted  to  his  personal  repre- 
sentatives. 

An  executor  derives  his  authority  from  the  will,  and  his  duties 
begin  at  the  death  of  the  testator.  They  may  be  stated  thus :  — 

1.  He  should  cause  the  deceased  to  be  buried  in  a  suitable  'man- 
ner. 

2.  He  should  offer  the  will  for  probate  as  soon  as  he  can  with  a 
reasonable  regard  to  his  convenience ;  and  in  proving  the  will,  filing 
bonds,  giving  notice,  making  and  returning  an  inventory,  and  the 
like,  he  must  conform  to  the  law  of  the  State  and  the  rules  of  the 
probate  ;  and  he  will  obtain  at  the  office  sufficient  information  on 
all  these  points. 


648  EXECUTORS  AND  ADMINISTRATORS. 

3.  He  must  collect  the  property,  and,  after  paying  the  debts,  he 
must  distribute  or  dispose  of  the  remainder  as  the  will  directs. 

4.  He  must  render  his  account  from  time  to  time,  until  a  final 
settlement  of  the  estate  is  made,  and  will  be  directed  at  the  Probate 
Office  when  and  how  to  file  his  accounts. 

An  administrator  derives  his  authority  from  the  court.  But  his 
duties  are  then  substantially  similar  to  those  of  an  executor ;  except- 
ing, that  he  must  distribute  and  dispose  of  the  estate  as  the  law 
requires,  as  he  has  no  will  to  direct  him,  unless  he  is  an  administra- 
tor with  the  will  annexed.  The  debts  must  be  paid  in  a  certain 
order.  This  is  not  precisely  the  same  in  all  the  States ;  but  it  is 
very  generally  as  follows :  — 

1.  Funeral-expenses,  charges  of  the  last   sickness,  and   probate 
charges. 

2.  Debts  due  to  the  United  States. 

3.  Debts  due  to  the  State  in  which  the  deceased  had  his  home. 

4.  Any  liens  attaching  to  the  property  by  law. 

5.  To  creditors  generally. 

If  the  estate  is  insufficient  to  pay  all  the  debts  due  from  it,  as 
soon  as  the  executor  or  administrator  finds  this  to  be  the  case,  he 
should  represent  the  estate  as  insolvent  at  the  Probate  Court,  and 
thereafter  follow  the  requirements  of  the  law  of  the  State  and  the 
rules  of  the  Probate  Office,  in  reference  to  insolvent  estates  of 
deceased  persons. 

In  most  of  tne  States,  all  the  necessary  forms  or  instruments  are 
given  to  applicants  at  the  Probate  Office.  It  may,  however,  be  con- 
venient to  know  how  to  frame  some  of  the  most  necessary  forms ; 
and  I  give  below  those  which,  with  such  obvious  changes  as  circum- 
stances may  require  and  indicate,  may  be  found  sufficient. 

(223.) 
Petition  to  be  appointed  Executor,  without  furtJier  Notice. 

To  THE  HONORABLE  THE  JUDGE  OF  THE  PROBATE  COURT  IN  AND  FOR  THE 

COUNTY  OF 

Respectfully  Represents          (name  of  the  executor')  of  (residence  of  executor) 

that  (name  of  testator)  who  last  dwelt  in  (residence  of  testator)  died  on  the 

day  of  in  the  year  of  our  Lord  one  thousand 


FOKMS   OF  BONDS,   PETITIONS,   ETC.  649 

eight  hundred  and  possessed  of  goods  and  estate  remaining  to  be 

administered,  leaving  a  widow,  whose  name  is  (name  oftht  a'idow)  and  as 

his  only  heirs-at-law  and  next  of  kin,  the  persons  whose  names,  residences  and 
relationship  to  the  deceased  are  as  follows,  viz.  (here  give  all  the  names,  stating  the 
relationship  of  each  person).  That  said  deceased  left  a  will  and  a  codicil  herewith 
presented,  wherein  your  petitioner  is  named  executor. 

Wherefore  your  petitioner  prays  that  said  will  and  codicil  may  be  proved  and 
allowed,  and  letters  testamentary  issued  to  him. 

Dated  this  day  of  A.D.  186      . 

(Signature  of  executor.) 

The  undersigned,  being  all  the  heirs-at-law  and  next  of  kin,  and  the  only  parties 
interested  in  the  foregoing  petition,  request  that  the  prayer  thereof  be  granted 
without  further  notice. 

(Signatures  of  heirs.) 

[Minors  must  be  so  designated,  and  the  names  of  their  guardians  given,  if  they  have  any. 
If  any  party  is  a  married  woman,  her  husband's  name  must  be  given.] 


(224.) 
Executor's  Bond. 

Know  all  Men  by  these  Presents,  That  we  (name  of  the  executor) 

as  principal,  and  (names  of  his  sureties)  as  sureties,  and  all  within  the  Com- 

monwealth (or  State)  of  are  holden  and  stand  firmly  bound  and 

obliged  unto  Judge  of  the  Probate  Court  in  and  for  the  County 

of  in  the  full  and  just  sum  of  dollars,  to  be  paid 

to  said  judge  and  his  successors  in  said  office ;  to  the  true  payment  whereof  we 
bind  ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally,  by  these  presents.     Sealed  with  our  seals.     Dated  the 
day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  sixty- 

The  Condition  of  this  Obligation  is  such,  That  if  the  above-bounden 
(name  of  the  executor)  executor  of  the  last  will  and  testament  of  (name 

of  the  testator)  late  of  (residence  of  testator)  deceased,  testate,  shall 

First,  make  and  return  to  the  Probate  Court  for  said  County  of 
within  three  months  from  his  appointment,  a  true  inventory  of  all  the  real  estate 
and  all  the  goods,  chattels,  rights  and  credits  of  said  testator,  which  are  by  law  to 
be  administered,  and  which  shall  have  come  to  his  possession  or  knowledge ; 

Second,  administer  according  to  law  and  the  will  of  said  testator,  all  the  goods, 
chattels,  rights,  and  credits,  and  the  proceeds  of  all  the  real  estate  that  may  be  sold 
for  the  payment  of  debts  or  legacies,  which  shall  come  to  the  possession  of  said 
executor,  or  of  any  other  person  for  him ;  and 

JTiird,  render  upon  oath  a  just  and  true  account  of  his  administration  within  one 


650  EXECUTORS  AND  ADMINISTRATORS. 

year,  and  at  any  other  times  when  required  by  said  court ;  then  this  obligation  to 

be  void  j  otherwise  to  remain  in  full  force  and  virtue. 

(Signature  of  executor.)    (Seal.) 
(Signature  of  surety.)       (Seal.) 
(Signature  of  surety.)       (Seal.) 
Signed,  Sealed  and  Delivered  in  presence  of 

,  88.  18         .     Examined  and  approved. 

(name  of  judge) 

Judge  of  Probate  Court. 

(225.) 
Hand  of  Executor,  who  is  also  Residuary  Legatee* 

Know  all  Men  by  these  Presents,  That  I  (name  of  the  executor) 

in  the  Commonwealth  (or  State)  of  *  am  holden  and  stand  firmly 

bound  and  obliged  unto  Judge  of  the  Probate  Court  in  and  for 

the  County  of  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  judge  and  his  successors  in  said  office ;  to  the  true  payment 
whereof  I  bind  myself  and  my  heirs,  executors,  and  administrators,  by  these  pres- 
ents.    Sealed  with  my  seal.     Dated  the  day  of 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 

The  Condition  of  this  Obligation  is  such,  That,  if  the  above-bounden 
(name  of  executor)  executor  of  the  last  will  and  testament  of  (name  of 

testator)  late  of  (residence  of  testator)  deceased,  testate,  being  residuary  legatee  in 
said  will,  shall  pay  all  debts  and  legacies  of  said  testator,  and  such  sums  as  may  be 
allowed  by  said  Probate  Court  for  necessaries  to  the  widow  or  minor  children  of 
said  testator,  then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
virtue.  • 

(Signature.)     (Seal.) 

Signed,  Sealed  and  Delivered  in  the  Presence  of 

,88.  18  Examined  and  approved. 

(name  of  judge) 

Judge  of  Probate  Court. 

(226.) 
Administrator's  Bond* 

Know  all  Men  by  these  Presents,  That  we  (name  of  adminis- 

trator) as  principal,  and  (name  of  sureties)  as  sureties,  and  all  within  the 

State  of  are  holden  and  stand  firmly  bound  and  obliged  unto 

Judge  of  the  Probate  Court  in  and  for  the  County  of 
in  the  full  and  just  sum  of  dollars,  to  be  paid  to  said  judge 

*  If  sureties  are  required,  they  should  be  added  here  as  in  preceding  Form. 


FORMS   OP  BONDS,   PETITIONS,  ETC.  651 

and  his  successors  in  said  office;  to  the  true  payment  thereof  we  bind  ourselves 
and  each  of  us,  our  and  each  of  our  heirs,  executors  and  administrators,  jointly  and 
severally,  by  these  presents.  Sealed  with  our  seals.  Dated  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

sixty 

The  Condition  of  this  Obligation  is  such,  That  if  the  above-bounden 
(name  of  administrator)  administrator  of  the  estate  of  (name  of 

deceased)  late  of  (residence  of  deceased)  deceased,  intestate  shall, 

FIRST,  make  and  return  into  said  Probate  Court,  within  three  months  after  his 
appointment,  a  true  inventory  of  all  the  real  estate,  and  all  the  goods,  chattels, 
rights  and  credits  of  said  deceased,  which  have  or  shall  come  to  his  possession  or 
knowledge  j, 

SECOND,  administer  according  to  law  all  the  goods,  chattels,  rights  and  credits 
of  said  deceased,  and  the  proceeds  of  all  his  real  estate  that  may  be  sold  for  the 
payment  of  his  debts,  which  shall  at  any  time  come  to  the  possession  of  said  admin- 
istrator, or  of  any  other  person  for  him ; 

THIRD,  render  upon  oath  a  true  account  of  his  administration,  within  one  year, 
and  at  any  other  tunes  when  required  by  said  Court ; 

FOURTH,  pay  any  balance  remaining  in  his  hands,  upon  the  settlement  of  his 
accounts,  to  such  persons  as  said  Court  shall  direct ;  and 

FIFTH,  deliver  the  letters  of  administration  into  said  Court,  in  case  any  will  of 
said  deceased  is  hereafter  duly  proved  and  allowed :  Then  this  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue. 

(Signature  of  administrator.)  (Seal.) 
(Signature  of  surety. )  (Seal.) 
(Signature  of  surety.)  (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

SS.  186     .     Examined  and  approved. 

(name  of  judge) 

Judge  of  Probate  Court. 

(227.) 

Administrator's  Petition  for  leave  to  sell  a  Part  of  the  Real 

Estate. 

To  THE  HONORABLE  THE  JUDGE  OF  THE  PROBATE  COURT  ix  AND  FOR  THE 
COUNTY  OF 

Respectfully  Represents  (name  of  the  administrator)  as  he  is  adminis- 

trator of  the  estate  of  (name  of  the  deceased)  late  of  (residence  of  the 

deceased)  in  said  County,  deceased.  That  the  debts 

due  from  the  deceased,  as  nearly  as  they  can  now  be 

ascertained,  amount  to $ 

And  the  charges  on  administration  to & 


Amounting  in  all  to 
43 


652  EXECUTOES  AXD  ADMIKESTRATOBS. 

< 

That  the  value  of  the  personal  estate  in  the  hands  of  the  petitioner     . 

(exclusive  of  the  widow's  allowance)  is $ 

And  that  the  personal  estate  is  therefore  insufficient  to  pay  the  debts 

of  the  deceased  and  the  charges  of  administration,  by  the  sum  of    $ 

Wherefore  your  petitioner  prays  that  he  may  be  licensed  to  sell  so  much  of  the 
real  estate  of  said  deceased  as  will  raise  the  last  mentioned  sum,  for  the  payment 
of  said  debts  and  charges  of  administration. 

Dated  the  day  of  A.D.  186    , 

(Signature.) 

The  undersigned,  being  all  persons  interested,  hereby  assent  to  ;the  sale,  aa 
prayed  for  in  the  foregoing  petition. 

(Here  should  follow  the  signatures  of  the  widow  and  all  the  heirs.) 

[If  the  petitioner  wishes  the  court  for  special  reasons  to  direct  what  specific  part  of  the  real 
estate  shall  be  sold,  he  must  set  forth  the  value,  description,  and  condition  of  the  estate,  or  of 
such  part  as  he  proposes  to  sell.] 


(228.) 

Administrator's  Petition  for  leave  to  sell  tJie   Whole  of  the  Heal 

Estate. 

To  THE  HONORABLE  THE  JUDGE  OF  THE  PROBATE  COURT  IN  AXD  FOR  THE 
COUNTY  OF 

Respectfully  Represents  (name  of  administrator)  as  he  is  adminis- 

trator of  the  estate  of  (name  of  deceased)  late  of  (resilience  of  the 

deceased)  in  said  County  deceased  That  the  debts 

due  from  the  deceased,  as  nearly  as  they  can  now 

be  ascertained,  amount  to ,    .      $ 

And  the  charges  of  administration  to *       $ 

Amounting  in  all  to & 

That  the  value  of  the  personal  estate  in  the  hands  of  the  petitioner 

(exclusive  of  the  widow's  allowance)  is $ 

That  the  personal  estate  is  therefore  insufficient  to  pay  the  debts  of  the 
deceased,  and  the  charges  of  administration,  and  it  is  necessary 
for  that  purpose  to  sell  some  part  of  the  real  estate  to  raise  the 

sum  of $ 

That  the  value  of  the  real  estate  according  to  the  appraisal  is    ...       $ 

And  that  by  a  partial  sale,  the  residue  of  the  estate  would  be  greatly  injured 

Wherefore  your  petitioner  prays  that  he  may  be  licensed  to  sell  the  whole  of  the 


FOKMS   OF  BONDS,   PETITIONS,   ETC.  653 

real  estate  of  said  deceased,  for  the  payment  of  said  debts  and  charges  of  adminis- 
tration, and  for  the  reasons  aforesaid. 
Dated  the  day  of  A.D.  186     . 

(Signature.) 

The  undersigned,  being  all  persons  interested,  hereby  assent  to  the  sale,  as 
prayed  for  hi  the  foregoing  petition. 

(Here  should  follow  the  signatures  of  the  widow  and  alt  the  heits.) 

[If  the  petitioner  wishes  to  sell  only  a  specific  part  of  the  real  estate,  which  is  more  than 
enough  to  pay  debts  and  legacies,  he  must  give  a  concise  description  thereof,  sufficient  to 
enable  parties  interested  to  identify  it.] 

(229.) 

% 
Bond  of  Administrator  Licensed  to  sell  Heal  Estate. 

Know  all  Men  by  these  Presents,  That  we  (name  of  person 

licensed)  as  principal,  and  (names  of  his  sureties)  as  sureties,  and  all  within 

the  State  of  are  holden  and  stand  firmly  bound  and  obliged  unto 

Esquire,  Judge  of  the  Probate  Court  in  and  for  the  county  of 

in  the  full  and  just  sum  of  dollars,  to  be  paid  to 

said  judge,  and  his  successors  in  said  office ;  to  the  true  payment  whereof  we  bind 

ourselves,  and  each  of  us,  our  and  each  of  our  heirs,  executors,  and  administrators, 

jointly  and  severally,    by  these  presents.     Sealed  with  our  seals.     Dated  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  sixty- 

Tlie  Condition  of  this  Obligation  is  such,  That  if  the  above-bounden 
(name  of  the  person  licensed)  administrator  of  the  estate  of  (name  of 

deceased)  late  of  (residence  of  deceased)  deceased,  who  has  been  licensed  by 

said  court  to  sell  real  estate  of  said  deceased,  more  than  is  necessary  for  the  pay- 
ment of  debts,  and  charges  of  administration,  shall  account  for  and 
dispose  of  according  to  law,  all  proceeds  of  the  sale  remaining  after  payment  of 
debts,  and  charges,  —  then  this  obligation  to  be  void ;  otherwise  to  remain 
in  full  force  and  virtue. 

(Signature  of  administrator.)     (Seal.) 
(Signature  of  surety.)  (Seal.) 

(Signature  of  surety.)  (Seal.) 

Signed,  Sealed  and  Delivered  in  Presence  of 

SUFFOLK,  **.  A.D.  186     .    Examined  and  approved. 

(name  of  judge) 

Judge  of  Probate  Court. 

I,  (name  of  administrator)  do  solemnly  swear,  that  in  disposing  of  the  real 

estate  of  (name  of  the  deceased)  deceased,  which  I  have  been  licensed  by  the 


654  EXECUTOKS  AND  ADMTNISTKATOES. 

Probate  Court  to  sell,  I  will  use  my  best  judgment  in  fixing  on  the  time  and  place 
of  sale,  and  will  exert  my  utmost  endeavors  to  dispose  of  the  same  in  such  manner 
as  will  be  most  for  the  advantage  of  all  persons  interested  therein.  So  help  me 
God. 

(Signature  of  administrator.) 

SUFFOLK,  ss.  186     .    Personally  appeared  the  above- 

named  and  took  and  subscribed  the  above  oath. 

Before  me, 

Justice  of  the  Peace. 


(230.) 
Account  of  Executor. 

The  first  (or  second  or  other  as  the  case  may  be)  account  of  (name  of 

executor)  executor  of  the  last  will  and  testament  of       (name  of  the  testator)  late  of 
(residence  of  the  testator)  in  the  county  of  deceased. 

Said  accountant  charges  himself  with  the  several  amounts  received  as 
stated  in  Schedule  A,  herewith  exhibited  .  .  .  .  $ 

And  asks  to  be  allowed  for  sundry  payments  and  charges  as  stated  in 
Schedule  B,  herewith  exhibited 8 


Balance    .        .        . $ 

(Signature.)        Executor. 

The  undersigned,  being  all  the  parties  interested,  having  examined  the  foregoing 
account,  request  that  the  same  may  be  allowed  without  further  notice. 

(Signatures  of  the  widow  and  all  the  heirs  and  legatees.) 


SCHEDULE  A. 

Dolls.         Cte. 
Amount  of  personal  estate  according  to  inventory    .... 

Balance  of  former  account 

Amount  received  from  gain  on  sale  of  personal  estate  over  ap- 
praised value,  and  from  other  property  as  follows :  — 

SCHEDULE  B. 

Amount  paid  out  and  charges,  as  follows  :  — 

1.  For  funeral-expenses  and  expenses  of  last  sickness       .        . 

2.  For  charges  of  administration 

3.  For  debts  of  the  deceased • 

4.  For  amounts  paid  to  legatees  or  heirs  ..... 


GUARDIANS.  655 


CHAPTER    XL. 


GUARDIANS  of  all  descriptions  are  treated  by  courts  as  trustees  ; 
and  in  almost  all  cases  they  are  required  to  give  security  for  the 
faithful  discharge  of  their  duty,  unless  the  guardian  be  appointed  by 
will,  and  the  testator  has  exercised  the  power  given  him  by  statute, 
of  requiring  that  the  guardian  shall  not  be  called  upon  to  give  bonds. 
But,  even  in  this  case,  such  testamentary  provision  is  wholly  personal  ; 
and  if  the  individual  dies,  refuses  the  appointment,  or  resigns  it,  or 
is  removed  from  it,  and  a  substitute  is  appointed  by  court,  this  sub- 
stitute must  give  bonds. 

The  guardian  is  held,  in  this  country,  to  have  only  a  naked 
authority,  not  coupled  with  an  interest.  His  possession  of  the  prop- 
erty of  his  ward  is  not  such  as  gives  him  a  personal  interest,  being 
only  for  the  purpose  of  agency.  But  for  the  benefit  of  his  ward  he 
has  a  very  general  power  over  it.  He  manages  and  disposes  of  the 
personal  property  at  his  own  discretion,  although  it  is  safer  for  him 
to  obtain  the  power  of  the  court  for  any  important  measure.  He 
may  lease  the  real  estate,  if  appointed  by  will  or  court  ;  he  can- 
not, however,  sell  the  real  estate  without  leave  of  the  proper  court. 
Nor  should  he  convert  the  personal  estate  into  real,  without  such 
leave. 

As  trustee,  a  guardian  is  held  to  a  strictly  honest  discharge  of  his 
duty,  and  cannot  act  in  relation  to  the  subject  of  his  trust  for  his 
own  personal  benefit,  in  any  .contract  whatever.  And  if  a  benefit 
arises  thereby,  as  in  the  settlement  of  a  debt  due  from  the  ward, 
this  benefit  belongs  wholly  to  the  ward.  And  it  has  been  held  that 
if  a  guardian  makes  use  of  his  own  money  to  erect  buildings  on  the 
land  of  his  ward,  without  having  an  order  of  the  court  therefor,  he 
cannot  charge  the  same  in  account  with  his  ward,  or  recover  the 
amount  from  the  ward.  But  we  doubt  whether  a  rule  so  severe 
would-be  applied  unless  for  special  reasons.  He  must  neither  make 


656  GUARDIANS. 

nor  suffer  any  waste  of  the  inheritance,  and  is  held  very  strictly  to  a 
careful  management  of  all  personal  property.  He  is  responsible  not 
only  for  any  misuse  of  the  ward's  money  or  stock,  but  for  letting  it 
lie  idle ;  and  if  he  does  so  without  sufficient  cause,  he  must  allow 
the  ward  interest  or  compound  interest  in  his  account. 

To  secure  the  proper  execution  of  his  trust,  he  is  not  only  liable 
to  an  action  by  the  ward,  after  the  guardianship  terminates,  but, 
during  its  pendency,  the  ward  may  call  him  to  account  by  his  next 
friend,  or  by  a  guardian  appointed  by  the  court  for  the  action. 
The  courts  have  gone  so  far  as  to  set  aside  transactions  which  took 
place  soon  after  the  ward  came  of  age,  and  which  were  beneficial 
only  to  the  former  guardian,  on  the  presumption  that  undue  influ- 
ence was  used,  and  on  the  ground  of  public  utility  and  policy. 

A  guardian  cannot,  by  his  own  contract,  bind  the  person  OA 
estate  of  his  ward ;  but  if  he  promise,  on  a  sufficient  consideration, 
to  pay  the  debt  of  his  ward,  he  is  personally  bound  by  his  promise, 
although  he  expressly  promises  as  guardian.  And  it  is  a  sufficient 
consideration  if  such  promise  discharge  the  debt  of  the  ward.  And 
a  guardian  who  thus  discharges  the  debt  of  his  ward  may  lawfully 
indemnify  himself  out  of  the  ward's  estate,  or  if  he  be  discharged 
from  his  guardianship,  he  may  have  an  action  against  the  ward  for 
money  paid  for  his  use.  An  action  will  not  lie  against  a  guardian 
on  a  contract  made  by  the  ward,  but  must  be  brought  against  the 
ward,  and  be  defended  by  the  guardian. 

The  guardianship  is  a  trust  so  strictly  personal,  or  attached  to  the 
individual,  that  it  cannot  be  transferred  from  him,  either  by  his  own 
assignment  or  devise,  or  by  inheritance  'or  succession. 

A  married  woman  cannot  become  a  guardian  without  the  consent 
of  her  husband;  but  with  that  she  may.  A  single  woman  who  is  a 
guardian  generally  loses  her  guardianship  by  marriage  ;  but  she  may 
be  re-appointed.  In  some  States,  she  loses  it  by  statute ;  in  others 
not. 


SCHEDULE   OF  STAMP  DUTIES.  657 

CHAPTER  XLL 

.A.CT. 


SCHEDULE    OF    STAMPS     REQUEUED     FOR     DIFFERENT    INSTRUMENTS, 
ON    AND    AFTER    OCT.    1,    18TO. 

Dolls.  Cts. 

Acknowledgment  of  deeds,  exempt.    , 

Affidavit  ..................................................  .  .........          5 

"      in  suits  or  legal  proceedings,,  exempt. 
Agreement  or  appraisement  (for  each  sheet  or  piece  of  paper  on  which  the 

same  is  written)  ..........  •  .....................................  5 

Assignment  or  transfer  of  lease  or  policy  of  marine,  inland,  or  fire  insu- 

rance, the  same  duty  as  the  original  instrument. 
"      of  patent  right  ..................................................  5 

Bank  Checks,  drafts  or  orders,  &c.,  at  sight  or  on  demand  ................  2 

Bills  Of  Exchange  (Foreign),  drawn  in,  but  payable  out  of,  the  United 
States,  each  bill  of  set  of  three  or  more  must  be  stamped. 

For  every  bill  of  each  set,  where  the  sum  made  payable  does  not  exceed 
one  hundred  dollars,  or  the  equivalent  thereof  in  any  foreign  currency 
in  which  such  bills  may  be  expressed,  according  to  the  standard  of 
value  fixed  by  the  United  States  .................................  2 

For  every  additional  hundred  dollars,  or  fractional  part  thereof  in  excess 
of  one  hundred  dollars  ........................................  2 

(Foreign),  drawn  in,  but  payable.  out  of,  the  United  States  (if  drawn 
singly  or  in  duplicate),  pay  the  same  duty  as  Inland  Bills  of  Exchange. 

[The  acceptor  or  acceptors  of  any  bill  of  exchange,  or  order  for  the 
payment  of  any  sum  of  money  drawn,  or  purporting  to  be  drawn,  in 
any  foreign  country,  but  payable  in  the  United  States,  must,  before 
paying  or  accepting  the  same,  place  thereupon  a  stamp  indicating  the 
duty.] 

Bills  Of  Exchange  (Inland),  draft  or  order,  payable  otherwise  than  at 
sight  or  on  demand,  and  any  promissory  note,  whether  payable  on  de- 
mand or  at  a  time  designated  (except  bank-notes  issued  for  circulation, 
and  checks  made  and  intended  to  be,  and  which  shall  be,  forthwith 
presented  for  payment),  for  a  sum  not  exceeding  one  hundred  dollars  5 

[But  promissory  notes  for  less  than  $100  are  exempt.] 

For  every  additional  one  hundred  dollars,  or  fractional  part  thereof.  ...  5 

[The  warrant  of  attorney  to  confess  judgment  on  a  note  or  bond  is  ex- 
empt from  stamp-duty,  if  the  note  or  bond  is  properly  stamped.] 

Bills  Of  Lading,  of  vessels  for  ports  of  the  United  States  or  British  North 
America,  exempt. 

"      or  receipt  for  goods  to  any  foreign  port.  .  .  .  .  ,  ,  .....................  1O 


658  STAMP  ACT. 

Dottt.  Ct». 
Bill  Of  Sale  of  any  vessel,  or  part  thereof,  when  the  consideration  doos  not 

exceed  five  hundred  dollars 5O 

"      exceeding  five  hundred  dollars,  and  not  exceeding  one  thousand  dollars.  l.OO 
"      exceeding  one  thousand  dollars,  for  each  five  hundred  dollars,  or  frac- 
tional part  thereof 5O 

"      of  personal  property  (other  than  ship  or  vessel) 5 

Bond,  personal  for  the  payment  of  money.     [See  Mortgage.} 

'       official 1  .OO 

"  for  indemnifying  any  person  for  the  payment  of  any  sum  of  money, 
where  the  money  ultimately  recoverable  thereupon  is  one  thousand 
dollars,  or  less 5O 

"  where  the  money  recoverable  exceeds  one  thousand  dollars,  for  every 
,  additional  one  thousand  dollars,  or  fractional  part  thereof '5O 

Bonds.  —  County,  city,  and  town  bonds,  railroad  and  other  corporation  bonds 

and  scrip,  are  subject  to  stamp-duty.     [See  Mortgage.} 
"      of  any  description,  other  than  such  as  are  required  in  legal  proceedings, 

and  such  as  are  not  otherwise  charged  in  this  schedule 25 

Certificates  of  deposit  in  bank,  sum  not  exceeding  one  hundred  dollars. 2 

"      of  deposit  in  bank,  sum  exceeding  one  hundred  dollars 5 

"      of  stock  in  an  incorporated  company 25 

"      general 5 

"      of  record  upon  the  instrument  recorded,  exempt. 
"      of  record  upon  the  book,  exempt. 

"      of  weight  or  measurement  of  animals,  coal,  wood,  or  other  articles,  ex- 
cept weigher's  and  measurer's  returns,  exempt. 
"      of  a  qualification  of  a  Justice  of  the  Peace,  Commissioner  of  Deeds,  or 

Notary  Public 6 

"      of  search  of  records 5 

"      that  certain  papers  are  on  file 6 

"      that  certain  papers  cannot  be  found 5 

"      of  redemption  of  land  sold  for  taxes .* 5 

"      of  birth,  marriage,  and  dcarh 5 

"      of  qualification  of  school-teachers 5 

"  of  profits  in  an  incorporated  company  for  a  sum  not  less  than  ten  dol- 
lars, and  not  exceeding  fifty  dollars 1O 

"      exceeding  fifty  dollars,  and  not  exceeding  one  thousand  dollars 25 

"  exceeding  one  thousand  dollars,  for  every  additional  one  thousand  dol- 
lars, or  fractional  part  thereof 25 

"      of  damage,  or  otherwise,  and  all  other  certificates  or  documents  issued 

by  any  port  warden,  marine  surveyor,  or  other  person  acting  as  mch.         25 


SCHEDULE  OF  STAMP  DUTIES.  659 

Doll*.  Ctt. 
Certified  Transcripts  of  judgments,  satisfaction  of  judgments,  and  of  all 

papers  recorded  or  on  file 5 

[N.B.  —  As  a  general  rule,  every  certificate  which  has  or  may  have  a 
legal  value  in  any  court  of  law  or  equity  will  require  a  stamp-duty 
of  five  cents.] 

Charter  Party,  or  letter,  memorandum,  or  other  writing  between  the  captain, 

owner  or  agent  of  any  ship,  vessel,  or  steamer,  and  any  other  person, 

relating  to  the  charter  of  the  same,  if  the  registered  tonnage  of  said 

ship,  vessel,  or  steamer  does  not  exceed  one  hundred  and  fifty  tons. . .     l.OO 

"      exceeding  one  hundred  and  fifty  tons,  and  not  exceeding  three  hundred 

tons 3.OO 

"      exceeding  three  hundred  tons,  and  not  exceeding  six  hundred  tons 5.OO 

"      exceeding  six  hundred  tons 1O.OO 

Check,  draft  or  order  for  the  payment  of  any  sum  of  money  exceeding  ten  dol- 
lars, drawn  upon  any  person  other  than  a  bank,  banker,  or  trust  com- 
pany, at  sight  or  on  demand 2 

Contract.     [See  Agreement.\ 

"      Broker's '. 1O 

Conveyance,  deed,  instrument,  or  writing,  whereby  lands,  tenements,  or  other 
realty  sold,  shall  be  conveyed,  the  actual  value  of  which  does  not  ex- 
ceed five  hundred  dollars 5O 

"      exceeding  five  hundred  dollars,  and  not  exceeding  one  thousand  dollars.     l.OO 
"      for  every  additional  five  hundred  dollars,  or  fractional  part  thereof  in 

excess  of  one  thousand  dollars 5O 

Entry  of  any  goods,  wares,  or  merchandise  at  any  custom-house,  either  for 
consumption  or  warehousing,  not  exceeding  one  hundred  dollars  in 

value. —5 

"      exceeding  one  hundred  dollars,  and  not  exceeding  five  hundred  dollars 

in  value 5O 

"      exceeding  five  hundred  dollars  in  value l.OO 

"      for  the  withdrawal  of  any  goods  or  merchandise  from  bonded  warehouse.         5O 
Indorsement  of  any  negotiable  instrument,  exempt. 
Insurance  (Marine,  Inland,  and  Fire)  where  the  consideration  paid  for  the 

insurance,  in  cash,  premium  notes,  or  both,  does  not  exceed  ten  dollars.         1O 
"      (Marine,  Inland,  and  Fire)  exceeding  ten  dollars,  and  not  exceeding  fifty 

dollars , 25 

"      (Marine,  Inland,  and  Fire)  exceeding  fifty  dollars 5O 

Insurance  (Life),  when  the  amount  insured  does  not  exceed  one  thousand 

dollars * 25 

"      (Life)  exceeding  one  thousand  dollars,  and  not  exceeding  five  thousand 

dollars 5O 

Insurance  (Life)  exceeding  five  thousand  dollars l.OO 

"      (Life)  limited  to  injury  to  persons  while  travelling,  exempt. 


660  STAMP 

DoGl.  Ctf. 
Lease  of  lands  or  tenements,  where  rent  does  not  exceed  three  hundred  dollars 

per  annum 5O 

"      exceeding  three  hundred  dollars,  for  each  additional  two  hundred  dol- 
lars, or  fractional  part  thereof  in  excess  of  three  hundred  dollars 5O 

"      perpetual,  subject  to  stamp-duty  as  a  "  conveyance,"  the  stamp-duty  to 

be  measured  by  resolving  the  annual  rental  into  a  capital  sum. 
"      clause  of  guaranty  of  payment  of  rent,  incorporated  or  indorsed,  five 

cents  additional. 

Manifest  for  custom-house  entry  or  clearance  of  the  cargo  of  any  ship,  vessel, 
or  steamer  for  a  foreign  port,  if  the  registered  tonnage  of  such  ship, 

vessel,  or  steamer,  does  not  exceed  three  hundred  tons l.OO 

"      exceeding  three  hundred  tons,  and  not  exceeding  six  hundred  tons 3.OO 

"      exceeding  six  hundred  tons 5.0O 

Mortgage,  trust  deed,  bill  of  sale,  or  personal  bond  for  the  payment  of  money 
exceeding  one  hundred  dollars,  and  not  exceeding  five  hundred  dol- 
lars   50 

"      exceeding  five  hundred  dollars,  for  every  additional  five  hundred  dollars, 

or  fractional  part  thereof  in  excess  of  five  hundred  dollars 5O 

Fawner's  Checks 5 

Pension  Papers.  —  Powers  of  attorney,  and  all  other  papers  relating  to  ap- 
plications for  bounties,  arrearages  of  pay,  or  pensions,  or  to  receipt 
thereof,  exempt. 
Passage  Ticket  from  the  United  States  to  a  foreign  port,  costing  not  more 

than  thirty-five  dollars 50 

"      from  the  United  States  to  a  foreign  port,  costing  more  than  thirty-five 

dollars,  and  not  exceeding  fifty  dollars l.OO 

"      for  every  additional  fifty  dollars,  or  fractional  part  thereof  in  excess  of 

fifty  dollars l.OO 

Power  of  Attorney  to  sell  or  transfer  stock,  or  collect  dividends  thereon. .          25 

"      to  vote  at  election  of  incorporated  company .- 1O 

"      to  receive  or  collect  rents 25 

"      to  sell,  or  convey,  or  rent,  or  tease  real  estate l.OO 

"      for  any  other  purpose 50 

Probate  Of  Will,  or  letters  of  administration,  where  the  value  of  both  real 

and  personal  estate  does  not  exceed  two  thousand  dollars 1.00 

"      for  every  additional  one  thousand  dollars,  or  fractional  part  thereof  in 

excess  of  two  thousand  dollars 50 

"      bonds  of  executors,  administrators,  guardians,  and  trustees,  are  each 

subject  to  a  stamp-duty  of. 1  .OO 

Proprietary  Medicines  and  Preparations.  —  For  and  upon  every 
packet,  box,  bottle,  pot,  phial,  or  other  enclosure,  containing  any  pills, 
powders,  tinctures,  troches,  lozenges,  sirups,  cordials,  bitters,  ano- 
dynes, tonics,  plasters,  liniments,  salves,  ointments,  pastes,  drops, 


STAMP  ACT.  681 

DolU-  Ctt, 

waters,  essences,  spirits,  oils,  or  other  medicinal  preparations  or  c6m- 
positions  whatsoever,  sold,  offered  for  sale,  or  removed  for  consump- 
tion and  sale,  by  any  person  or  persons  whatever,  where  such  packet, 
box,  &c.,  with  its  contents,  does  not  exceed  at  retail  price  or  value  the 

sum  of  twenty-five  cents '. 1 

Exceeding  twenty-five,  and  not  exceeding  fifty  cents 2 

Exceeding  fifty,  and  not  exceeding  seventy-five  cents 3 

Exceeding  seventy-five  cents,  and  not  exceeding  one  dollar 4 

Exceeding  one  dollar,  for  every  additional  fifty  cents,  or  fractional  part 

thereof  in  excess  of  one  dollar 2 

Officinal  preparations  and  medicines  mixed  or  compounded  specially  for 
any  person  according  to  the  written  recipe  or  prescription  of  any 
physician  or  surgeon,  exempt. 

Perfumery  and  Cosmetics.  —  For  and  upon  every  packet,  hox,  bottle, 
pot,  phial,  or  other  enclosure,  containing  any  essence,  extract,  toilet- 
water,  cosmetic,  hair-oil,  pomade,  hair-dressing,  hair-restorative,  hair- 
dye,  tooth-wash,  dentifrice,  tooth-paste,  aromatic  cachous,  or  any  simi- 
lar articles,  by  whatsoever  name  the  same  heretofore  have  been,  now 
are,  or  may  hereafter  be,  called,  known,  or  distinguished,  used  or  ap- 
plied, or  to  be  used  or  applied  as  perfumes  or  applications  to  the  hair, 
mouth,  or  skin,  sold,  offered  for  sale,  or  removed  for  consumption  and 
sale,  the  same  rates  per  package,  &c.,  as  for  mcdi  -ines  and  prepara- 
tions. 

Friction  Matches.  —  For  and  upon  every  parcel  or  pacRage  of  one  hun- 
dred or  less 1 

More  than  one  hundred,  and  not  more  than  two  hundred 2 

For  every  additional  one  hundred,  or  fractional  part  thereof 1 

Cigar  Lights  and  Wax  Tapers,  double  the  rates  for  friction  matches. 
Canned  meats,  fruits,  vegetables,  sauces,  sirups,  jellies,  &c.,  for  every  can,  not 

exceeding  two  pounds  in  weight 1 

For  every  additional  pound  or  fraction  thereof 1 

Playing1  Cards.  —  For  and  upon  every  pack,  not  exceeding  fifty-two  in 

number,  whatever  the  price 5 

Probate  Of  Will,  certificate  of  appointment 5 

Protest  upou  bill,  note,  check,  or  draft 25 

Promissory  Note.  —  [See  Dills  of  Exchange,  Inland.] 

"      deposit  note  to  mutual  insurance  companies,  when  policy  is  subject  to 

duty,  exempt. 

"      renewal  of,  subject  to  same  duty  as  an  original  note. 

Quit  Claim  Deed,  to  be  stamped  as  a  conveyance,  except  when  given  as  a 
release  of  a  mortgage  by  the  mortgagee  to  the  mortgagor,  in  which 
case  it  is  exempt. 


662  SCHEDULE   OP  STAMP  DUTIES. 

Dolls.  Cts. 

Receipts  for  the  payment  of  any  sum  of  money,  or  for  the  delivery  of  any 
property,  or  for  satisfaction  of  any  mortgage  or  judgment,  or  decree 
of  any  court,  are  exempt. 

Sheriff's  return  on  writ,  or  other  process,  exempt. 
Trust  Deed,  made  to  secure  a  debt,  to  be  stamped  as  a  mortgage. 
"      conveying  estate  to  uses,  to  be  stamped  'as  a  conveyance. 


Remarks. 

A  penalty  of  fifty  dollars  is  imposed  upon  every  person  who  makes,  signs,  or  issues, 
or  who  causes  to  be  made,  signed,  or  issued,  any  paper  of  any  kind  or  description  what- 
ever, or  who  accepts,  negotiates,  or  pays,  or  causes  to  be  accepted,  negotiated,  or  paid,  any 
bill  of  exchange,  draft,  or  order,  or  promissory  note,  for  the  payment  of  money,  without 
the  same  being  duly  stamped,  or  having  thereupon  an  adhesive  stamp  for  denoting  the 
tax  chargeable  thereon,  cancelled  in  the  manner  required  by  law,  with  intent  to  evade  the 
provisions  of  the  revenue  act. 

A  penalty  of  two  hundred  dollars  is  imposed  upon  every  person  who  pays,  negotiates, 
or  offers  in  payment,  or  receives  or  takes  in  payment,  any  bill  of  exchange  or  order  for 
the  payment  of  any  sum  of  money,  drawn  or  purporting  to  be  drawn  in  a  foreign  coun- 
try, but  payable  in  the  United  States,  until  the  proper  stamp  has  been  affixed  thereto. 

A  penalty  of  fifty  dollars  is  imposed  upon  every  person  who  fraudulently  makes  use 
of  an  adhesive  stamp  to  denote  the  duty  required  by  the  revenue  act,  without  effectually 
cancelling  and  obliterating  the  same  in  the  manner  required  by  law. 

Postage  stamps  cannot  be  used  in  payment  of  the  duty  chargeable  on  instruments. 

It  is  the  duty  of  the  maker  of  an  instrument  to  affix  and  cancel  the  stamp  required 
thereon.  If  he  neglects  to  do  so,  the  party  for  whose  use  it  is  made  may  stamp  it  before 
it  is  used  ;  but  in  no  case  can  it  be  legally  used  without  a  stamp ;  if  used  without  a  stamp, 
it  cannot  be  afterwards  effectually  stamped. 

Certificates  of  loan,  in  which  there  shall  appear  any  written  or  printed  evidence  of  an 
amount  of  money  to  be  paid  on  demand,  or  at  a  time  designated,  are  subject  to  stamp 
duty  as  "  promissory  notes." 

When  two  or  more  persons  join  in  the  execution  of  an  instrument,  the  stamp  to  which 
the  instrument  is  liable  under  the  law  may  be  affixed  and  cancelled  by  any  one  of  the 
parties. 

In  conveyance  of  real  estates,  the  law  provides  that  the  stamp  affixed  must  answer  to 
the  value  of  the  estate  or  interest  conveyed. 

No  stamp  is  required  on  any  warrant  of  attorney  accompanying  a  bond  or  note,  when 
Buch  bond  or  note  has  affixed  thereto  the  stamp  or  stamps  denoting  the  duty  required  ; 


KEMAEKS.  663 

and  whenever  any  bond  or  note  is  secured  by  mortgage,  but  one  stamp-duty  is  required 
on  such  papers,  and  that  stamp-duty  is  the  highest  rate  required  for  either  of  these  instru- 
ments. In  such  case,  a  note  or  memorandum  of  the  value  or  denomination  of  the  stamp 
affixed  should  be  made  upon  the  margin  or  in  the  acknowledgment  of  the  instrument 
which  is  not  stamped. 

In  all  cases  where  an  adhesive  stamp  is  used  for  Denoting  the  stamp-duty  upon  an 
instrument,  the  person  using  or  affixing  the  same  must  write  or  imprint  thereupon  an  ink 
the  initials  of  his  name,  and  the  date  (the  year,  month,  and  day)  on  which  the  same  is 
attached  or  used.  Each  stamp  should  be  separately  cancelled ;  and  the  entire  surface 

must  be  exposed  to  view. 

J 


INDEX. 


ABANDONMENT,  In  the  law  of  marine  insur- 
ance, meaning  of,  389. 

not  obligatory  on  insured,  390. 

necessity  of,  390. 

of  the  right  of,  390,  393. 

of  the  exercise  of  the  right  of,  391. 

how  made,  and  by  whom,  392. 

must  be  distinct,  392. 

if  deficient  in  form,  objections  to,  how 
waived,  392. 

when  insured  must  elect  whether  or  not  to 
abandon,  393. 

acceptance  of  by  insurer,  393. 

of  the  effect  ef,  394. 

masters  and  owners  become  trustees  for 
the  insurers  in  respect  to  the  property 
abandoned,  394. 

loss  after  must  be  made  up  by  owner,  394. 
ACCEPTANCE,    of  offer,   when   necessary   to 
make  a  contract,  48. 

of  bills  of  exchange,  187. 

how  may  be  made,  cancelled,  &c.,  187. 

can  be  done  only  by  the  drawee,  his  agent, 
or  some  one  who  accepts  for  his  honor, 
188. 

BO  holder  is  obliged  to  receive  an  accept- 
ance for  honor,  188. 

holder  may  accept  or  refuse  a  qualified,  187. 

presentment  for,  172.    . 

or  payment,  for  honor,  188, 189. 

of  abandonment  in  insurance,  393. 

of  insurer,  not  necessary  to  give  full  effect 

to  an  abandonment,  393. 
ACCEPTOR,  of  bill  of  exchange,  151. 

of  bill,  bound  to  pay  the  same  at  maturity, 
170. 

rights  and  duties  of,  187, 188. 
ACCOMMODATION  PAPER,  incidents  of,  166. 


ACKNOWLEDGMENT,  necesi.<w/  before  record- 
ing deeds,  438,  437. 
ADJUSTMENT,  of  average,  333. 

by  whom  made,  334. 

when  binding,  334. 

difference  between  marine  and  fire  policy, 

in,  418. 
ADMINISTRATORS,  and    executors,  law    of, 

powers  and  duties  of,  645. 
AFFIRMATION,  of  consignee  or  agent,  357. 
AGENCY,  In  general,  192, 193. 

may  be  established  by  subsequent  ratifica- 
tion, 195. 

general  rules  of,  195, 196. 

rights  of  action,  growing  out  of,  200,  201. 
AGENT,  acting  under  del  credere  commission, 
205. 

must  obey  all  instructions,  200. 

commercial  jurisdiction  over  seamen,  345. 

extent  and  duration  of  authority  of,  197, 
198. 

general  and  particular,  193. 

binds  the  principal  by  his  acts,  192. 

liability  of,  200. 

may  receive  his  authority  how,  194,  195, 
196. 

acts  of,  may  be  ratified  by  principal  after- 
wards, 195. 

may  insure  against  fire,  408. 

when  master  of  ship  is,  338. 

in  general,  is  entitled  to  indemnity  from 
principal,  203. 

cannot  appoint  a  sub-agent  unless  author- 
ized, 203. 

is  bound  to  use  all  reasonable  care  and 
skill,  203. 

Is  responsible  for  any  breach  of  duty,  203. 

employed  to  sell  property,  cannot  buy  it 
himself,  204. 

must  keep  exact  account  of  all  doings,  204. 
665 


666 


INDEX. 


AGENT,  when  he  may  throw  up  the  agency  at 
pleasure,  205. 

authority  of,  is  revoked  by  insanity,  205. 
AGREEMENT  AND  ASSENT  (chap,  vi.)  45. 

the  legal  meaning  of,  and  requirement  of, 
45. 

when  parties  understand  each  other  differ- 
ently, what  their  rights,  46. 

in  construing,  the  intention  of  the  parties 
always  a  guide,  47. 

mistakes  of  fact  in,  may  be  corrected  by  the 
courts ;  mistakes  of  law  cannot  be,  47. 

what  a  legral  assent  is,  48. 

offers  made  on  time,  48. 

a  bargain  made  by  correspondence,  49. 

what  evidence  may  be  received  in  reference 
to  a  written  contract,  51. 

of  custom,  or  usage,  53. 

to  do  work,  when  broken  by  promisor, 
without  good  cause,  he  cannot  recover,  95. 

rules  for  determining,  when  original  agree- 
ment has  been  somewhat  departed  from, 
96. 

when  may  be  and  when  it  should  be  made 
without  seal,  97. 

when  under  seal,  and  so  formed  that  it  be- 
comes an  indenture,  97. 

when  by  one  only,  without  seal,  it  is  a 
simple  promise,  97. 

when  by  one  only,  under  seal,  it  becomes  a 
bond,  97. 

to  be  performed  within  a  year,  when  not 
affected  by  statute  of  frauds,  139. 

form  and  subject-matter  of,  139, 140. 

if  name  be  printed  to,  may  be  sufficient 

signature,  140. 

AGREEMENT,  when  it  should  be  written  and 
signed  by  both  parties,  57. 

not  controlled  by  oral  testimony,  except  in 
case  of  fraud,  57. 

for  sale  of  lands,  should  always  state  cov- 
enants contemplated,  65. 

for  arbitration,  not  binding  on  any,  unless 

all  have  entered  into  it,  92. 
ALABAMA,  law  as  to  rights  of  married  women 

In,  17. 

ALIENATION,  in  the  law  of  insurance,  what  is 
considered  such  as  to  terminate  the 
insured's  interest,  417. 

consent  of  insurer  should  be  obtained  to, 
417. 

of  policy,  416. 
ALLOWANCE,  in  the  law  of  insurance,  of  new 

for  old,  391. 
ALTERATIONS,  of  policy  of  insurance,  364. 

effect  of,  on  insured  property,  405,  406. 

prudent  to  obtain  insurer's  assent  to,  406. 


APPRENTICES. 

obligations  of  the  master,  12. 

obligations  of  the  apprentice,  12,  13. 

what  misconduct  of,  authorizes  a  discharge 

of  him  by  his  master,  13. 
seducing  an  apprentice  away  from  his  mas- 
ter, liability  for,  13. 

APPLICATION,  for  insurance,  how  made,  402. 
ARKANSAS,  law  as  to  rights  of  married  women 

in,  18. 

ARBITRATORS,  submission  to,  when  it  may  be 
eet  aside  by  either  party,  before  award 
made,  240. 

ARBITRATION,  is  favored  by  law,  236. 
ARTICLES  of  shipping,  342. 
ARREST,  of  vessel,  how  affecting  insurers,  383. 
ASSIGNMENT,  definition  of,  106. 
of  policy  of  insurance,  364. 
of  policy,  avoids  it,  when,  416. 
of  policy,  should  be  made  on  it,  421. 
always  best  to  secure  the  insurance-compa- 
ny's assent  to,  422. 
of  policy,  what  constitutes,  in  life-insuranae, 

428. 

ATTACHMENT.  —  See  Recovery  of  Debts,  599. 
AUTHORITY,  extent  and  duration  of  agent's, 

197. 
execution  of,  must  be  conformed  to  with 

strictness,  199. 
of  ship-ma&ter,  338-340. 
AVERAGE,  general,  331,  395. 

when  within  the  scope  of  insurance,  395. 
what  is  not  included  in,  332. 
adjustment  of,  333. 

adjustment  of,  by  whom  made,  when,  334. 
AWARD,  essentials  of,  236. 
must  be  certain,  237. 
must  be  possible,  237. 
when  fully  made,  none  of  the  parties  have 

further  control,  241. 
should  be  sealed  up  and  delivered  to  all  the 

parties,  242. 

must  be  reasonable,  238. 
must  be  final  and  conclusive,  238. 
no  especial  form  of,  necessary,  239. 
the  directions  in  submission  of,  must  be 

strictly  followed,  239. 

set  aside,  if  "  procured  by  corruption  or  un- 
due means, "239. 

set  aside,  if  the  arbitrator  has  made  a  mate- 
rial mistake  of  law  or  fact,  239. 

B. 

BAILEE,  may  insure  against  fire,  408,  409. 
BANKS,  receive  more  than  legal  interest,  274. 
BANK  BILLS,  are  promissory  notes  of  a  baui, 
payable  to  bearer,  164. 


INDEX. 


667 


BANK  BILLS,  a  good  tender,  unless  objected  to 

at  the  time,  161. 

BANK  CHECK,  is  a  Bill  of  Exchange,  164. 
requires  no  acceptance,  164. 
If  drawn  when  drawer  has  no  funds  in  the 

bank,  it  is  a  fraud,  165. 
usually  payable  to  bearer,  165. 
is  not  payment  till  cashed,  105. 
countermanded  by  death  of  drawer,  165. 
if  a  bank  pay  a  forged,  it  is  its  own  loss,  165. 
BANKRUPTCY,  abstract  of  statute  of,  279-297. 

rules  in,  208-304. 
BAGGAGE,  carrier  liable  for  reasonable  amount 

of,  257,  258. 

what  has  been  held  as,  257,  258. 
BARGAIN,  naked,  is  when  no  consideration  la 

given,  90. 

for  real  property,  void  when  oral,  443. 
BARRATRY,  how  defined,  383. 

how  provided  against  in  the  policy,  383. 
BILL  OF  LADING,  essentials  of,  321-323. 
signed  by  master  of  ship,  322. 
evidence  against  shipowners,  322. 
how  given  in  case  of  charter  parties,  328. 
BILL,  of  Exchange,  legal  meaning  of,  143. 
foreign  and  inland,  166,  167. 
maker  or  acceptor  of,  how  bound  to  pay  the 

same,  170. 

what  is  meant  by  foreign,  178. 
loss  of,  no  excuse  for  not  protesting  it,  178. 
notarial  seal,  evidence  of  dishonor  of  for- 
eign, 178. 

paid  at  maturity  ceases  to  be  negotiable,  188. 
portion  of,  cannot  be  transferred,  186. 
may  be  transferred  by  indorsement  of  exec- 
utor, after  death  of  the  holder,186. 
of  sale  of  vessel,  347. 
of  Exchange,  is  what,  157. 
difference  between  parties  to  promissory 

note  and  parties  to,  157. 
BLOCKADE,  what  it  is,  and  law  of,  383. 

when  it  may  be  run,  384. 
BOND,  essentials  of,  97. 
condition  of,  98. 
of  bottomry,  319,  320, 356. 
of  respondentia,  by  whom  given,  340. 
"  applies  to  what,  340. 

BOTTOMRY,  contract  of,  318-320. 
bond  of,  319,320,356. 
pledge,  when  justified,  339. 
BROKERS,  have  generally  no  authority  to  re- 
ceive payment,  207. 

BUSINESS  LAW,  in  general,  in  chap,  il.,  5. 
BUYER,  acquires  the  right  to  consider  no  sale 
as  made,  if  the  seller  neglects  or  refuse* 
to  deliver  the  goods  in  reasonable  time, 
113. 

44 


BUYER,  when  imposed  upon  by  fraudulent  sale 
must  at  once  exercise  right  of  annulling 
it,  as  soon  as  he  knows  the  fraud,  121. 


C. 

CALIFORNIA,  law  as  to  rights  of  married  wo- 
men in,  18. 

CAPTURE,  how  affecting  insurers,  383. 
CARGO,  a  part  of  the,  when  legal,  may  be  In- 
sured, 369. 

when  sold,  or  pledged  by  master,  340. 
CARRIER,  is  liable  only  for  goods  delivered  to 

him,  259. 
is  liable  only  for  injuries  done  by  himself 

or  servants  to  third  persons,  259,  260. 
private,  liability  of,  244. 
when  gratuitous  bailee,  2*4. 
private,  liable  for  gross  negligence,  245. 
common,  who  is  a,  245. 

'«        rights  and  responsibilities  of,  245. 
"        distinction  between  private  and, 

245. 

44         who  are  chargeable  as,  246, 247. 
41         obligation  of,  248,  251. 
44        cannot  refuse  goods  offered  with- 
out good  cause,  248. 

14        is  bound  to  receive  goods  in  a 
suitable  way,  and  at   suitable 
times  and  places,  248. 
44         is  bound  to  comply  with  direc- 
tions, 248. 
41        obligation  as  to  passengers,  249, 

250. 
44        obligation  as  to  delivery  of  goods, 

250,  251. 

44  immediate  notice  must  be  given 
when  not  delivered  to  owner  or 
agent,  251. 

"        lien  of,  on  goods,  252. 
44        liability  of,  252,254. 
44        liable  for  loss  happening  under 
his  charge,  except  for  act  of 
God  or  public  enemy,  253. 
44        liable  for  loss  by  fire,  253. 
44        general  principles  of  agency  ap- 
ply to,  254. 
44        may  be  liable  beyond  his   own 

route,  254. 
of  passengers,  is  under  more  limited  liubili 

ty  than  carrier  of  goods,  254, 255. 
common,  has  a  right  to  modify  his  liabili- 
ty by  bargain.  255-257. 
44         notice  by,  if  reasonable  aud  just, 

is  binding,  256. 

liability  of,  for  goods  carried  by  passen- 
gers, 257-200. 


668 


INDEX. 


CARRIER,  liable  for  necessary  amount  of  bag- 
gage, 257,  258. 
may  insure  against  fire,  409. 
CHARTER,  power  of  master  to,  339. 
CHARTERER,  of  ship,  rights  of,  329,  330. 
CUABTER  PARTY,  351. 
defined,  327. 

no  particular  form  for,  328. 
how  suspended  or  annulled,  331. 
contract  of,  may  be  dissolved  how,  330,  331. 
CHOSES  IN  POSSESSION,  a  law-term,  explained, 

15,  16. 
CHOSES  is  ACTION,  a  law-term,  explained,  15, 

16. 
CLAIM,  for  contribution,  333. 

of  insured,  founded  on  interest,  366. 
CODICILS,  meaning  of,  law  of,  and  rules  con- 
cerning, 645. 

COLLISION,  who  liable  for,  340. 
rules  in  regard  to,  341. 
a  peril  of  the  sea,  381. 
COMMON  CARRIER.  —  See  Carrier. 
COMMON   LAW,  as  distinguished  from  stat- 
utes, 5. 
COMMERCE,  power  to  regulate,  in  Congress, 

311. 
COMMERCIAL  AGENTS,  jurisdiction  of,  over 

seamen,  345. 

COMPOUND  INTEREST.  — See  Interest. 
COMPANIES,  for  effecting  fire  insurance,  399. 
mutual,  compared  with  joint  stock,  399. 
usage  of  each  other,  may  be  appealed  to  in 

what  cases,  400. 
all  insured,  become  members  in  mutual  fire 

insurance,  402. 
COMPLIANCE,  with  terms    offered,  when  It 

makes  a  contract,  48. 
CONCEALMENT   and    misrepresentation,  375, 

376. 

converse  of  misrepresentation,  412. 
effect  of,  412. 
when  would  operate  as  fraud,  and  avoid  the 

policy,  413. 

in  case  of  life-insurance,  429-431. 
CONDITION,  of  a  bond,  98. 

on  which  application  for  Insurance  is  based, 

402. 

effect  of,  in  deed,  442. 
CONFESSION,  of  judgment,  189. 
CONNECTICUT,  law  as  to  rights  of  married  wo- 
men in,  19. 

CONSIDERATION,  required  to  support  a  prom- 
ise, 90. 

exceptions  to  the  rule  requiring  considera- 
tion for  a  promise,  90. 
sufficiency  of,  91. 
what  is  a  sufficient,  91,  92,  93. 


CONSIDERATION,  cannot  be  any  thing  by  which 
the  public  interests  are  harmed,  92. 

one  promise  is  sufficient,  for  another,  92. 

failure  of,  94. 

when  failure  is  partial  only,  may  be  foun- 
dation for  promise,  95. 

merely  moral,  is  not  in  law  a  sufficiently 
legal,  93. 

illegal,  93. 

impossible,  94. 

implied  by  seal,  98. 

need  not  be  alleged  in  a  bond,  98. 

need  not  be  expressed  in  agreement,  139. 

what  it  may  be,  valuable,  legal,  or  moral. 
170. 

none  sufficient  when  illegal,  170. 

may  be  illegal,  in  how  many  ways,  170. 

for  the  insurance,  352. 
CONSIGNEE,  may  assign  bill  of  lading,  322. 

cannot  abandon  goods  for  freight  so  long  as 
they  remain  "  in  specie,"  326. 

oath  or  affirmation,  357. 

may  insure  against  fire,  408. 

may  cover  in  one  policy,  in  his  own  name, 
goods  of  various  consignors,  408. 

not  bound  to  insure,  but  may  in  his  discre- 
tion, 408. 

CONSTRUCTION,  of  statute  of  limitations,  264. 
CONSULS,  jurisdiction  of,  over  seamen,  345. 
CONTRACT,  for  building,  should  always  be  ac- 
companied by  specifications,  73. 

void  for  illegality  or  fraud,  120. 

when  "  wager,"  120,  121. 

is  vitiated  and  avoided  by  fraud,  121. 

in  general,  the  law  of  place  governs  every, 
167. 

law  of  the  court  determines  all  question! 
as  to  remedy  on  a,  107, 168. 

for  usury,  wholly  void,  271. 

foreign,  for  usury,  valid  everywhere  but  in 
the  State  where  suit  is  brought,  may  be 
enforced  there,  273. 

law  of  place  of,  governs  construction  of, 
306. 

valid  where  made,  valid  elsewhere,  306. 

invalid  where  made,  invalid  everywhere, 
306. 

is  made  when,  307. 

is  made  where,  307. 

as  influenced  by  law  of  place,  307,  308. 

of  bottomry,  318-320. 

of  affreightment,  is  entire,  323. 

of  charter  party,  how  dissolved,  330,  331. 

of  insurance,  365. 

of  insurance,  when  complete,  400. 

of  insurance,  must  be  strictly  regarded, 
400. 


INDEX. 


669 


CONTRIBUTION,  claim  for,  during  embargo'  or 

capture,  332. 
how  made,  332. 
for  ship's  repairs,  333. 
CONVEYANCES,  of  ships,  recorded,  314. 

by  one  insured,  when  treated  as  a  mort- 
gage, 417. 
COVENANTS,  of  special  or  general  warranty, 

should  be  stated  in  agreement  for  sale  of 

lands,  65. 

of  warranty,  in  deed,  440,  441. 
COPYRIGHTS,  law  of,  591. 

what  may  be  the  subject  of,  591. 
how  copyrights  may  be  obtained,  592. 
period  of  time  for  which  they  secure  the 

right,  592. 
punishment  for  infringement  of  copyright, 

594. 

agreement  respecting  copyrights  and  pub- 
lishing, 596. 

COVERTURE,  a  law-term,  means  marriage. 
CREDITORS,  partnership,  cannot  attach  private 

property  till  private  creditors  are  satisfied, 

227. 
levy  of  private,  on  partnership  property, 

confers  only  what  the  partner  has,  228. 
have  an  insurable  interest  in  life  of  their 

debtor,  427. 

CUSTOM,  of  merchants,  its  force  and  effect,  6. 
not  valid  if  illegal,  6. 
has  no  force  when  contract  made  expressly 

to  the  contrary,  57. 
or  usage,  made  use  of  in   construing   the 

meaning  and  effect  of  a   contract,  and 

of  the  words  used,  53,  54. 
never  considered,  if  parties  expressly  agree 

to  disregard  it,  55. 


D. 


DAMAGES,  when  liquidated,  when  unliquidat- 
ed, 127,  270. 

DEBT,  barred  under  statute  of  limitations,  263. 
DEBTOR,  may  insure  his  life  in  favor  of  credit- 
or, 427. 

DEBTS,  recovery  of,  599. 
DKED,  meaning  of,  legal  and  common,  433. 
should  be  signed,  and  in  what  manner,  433, 

434. 

eeal  of,  is  what,  434. 
should  be  delivered,  434,  435. 
may  be  delivered  by  what  persons,  435. 
execution  of,  should  be  attested  by  wit- 
nesses, 435,  436. 

acknowledgment  of,  incidents  of,  436,437. 
must  be  registered  in  the  proper  recording 
Office,  437. 


DEED,  effect  of  non-recording,  437,438. 
should  be  dated,  438. 
customary  to  name  consideration  In,  438, 

439. 
receipt  of  consideration  in,  does  not  bind 

seller,  439. 
description  of  land  in,  should  be  minute, 

and  accurate,  439. 

when  conferring  life-interest  merely,  439. 
when  conferring  fee  simple,  439. 
terminated  by  clause  of  execution,  440. 
of  warranty,  or  of  quit-claim,  440. 
of  quit-claim,  with  warranty,  441,  442. 
hardly  safe  to  have  condition  in,  442. 
as  to  husband  and  wife  joining  in,  442. 
variety  of,  443. 
deed-poll  explained,  444. 
of  indenture,  444. 
of  mortgage,  490. 

DELAWARE,  law  as  to  rights  of  married  wo- 
men in,  20. 
DELIVKRY,  what  is  sufficient  to  constitute,  115, 

116, 118. 

as  bearing  on  the  validity  of  the  transac- 
tion, 117. 

of  policy,  not  essential,  400. 
necessary   to   assignment   of  life  •  policy, 

428. 

essential  to  validity  of  deed,  434,  435. 
of  deed,  may  be  made  by  whom,  435. 
DEMAND  OF  PAYMENT,  is  sufficient,  if  made  at 
residence  or  place  of  business  of  payee, 
174. 

and  refusal,  what  constitutes,  174. 
bankruptcy  or  insolvency  no   excuse  for 

non-demand,  174,  175. 
should  be  made  at  the  proper  place,  176. 
for  payments  should  be  made  at  the  place 

designated  in  the  instrument,  177. 
DESCRIPTION,  of  property  insured,  378. 
DEMURRAGE,  law  respecting,  330. 
in  the  policy  of  insurance,  401. 
of  insured  property,  held  to  amount  to  what 

404. 

DESERTION,  of  seamen,  how  punished,  345. 
DEVIATION,  how  denned,  385. 

how  affects  insurers,  385. 
DOMICIL,  of  person,  how  determined,  308-311. 
a  person  can  have  but  one,  309. 
first  is  retained   till   second   is   acquired, 

310. 

may  be  changed  how,  309. 
woman  marrying  acquires  her  husband's, 

310. 
of  the  father  determines  that  of  child,  310, 

311. 
DRAWER,  to  bill  of  exchange,  157. 


670 


INDEX. 


E. 


EQUITY  OF  REDEMPTION,  of  mortgagor,  491. 
EVIDENCE,  of  death,  what  must  be,  420. 
may  disprove  receipt  in  deed,  439. 
cannot  be  received  to  contradict  or  change 
the  effect  of  a  written  contract,  but  may 
be  received  to  explain  it,  51. 
EXCEPTION,  to  common  law  rule,  in  case  of 

negotiable  paper,  168,  169. 
statutory,  under    statute  of    limitations, 

207. 
EXECUTOR,  may  indorse  bill  or  note  after  death 

of  holder,  186. 

EXECUTORS,  law  of,  powers  and  duties  of,  645. 
EXECUTION,  of  authority,  199. 

of  fire  policy,  400. 
EXEMPTION,  of  property,  from  attachment  or 

execution,  600. 

EXPLANATION,  of  a  written  contract,  by  evi- 
dence, law  as  to,  51,  52. 


FACTOR,  may  pledge  goods  for  advances  to 

principal,  206. 

must  obejr  all  instructions,  206. 
liable  to  principal  for  default,  200. 
may  insure  goods  in  possession,  200. 
may  use  his  own  name  in  all  transactions, 

207. 
distinction  between  foreign  and  domestic, 

207,  208. 
cannot  claim  his  commissions  till  his  whole 

duty  be  performed,  207. 
FEME  COVERT,  a  law-term,  means  a  married 

woman. 

FEME  SOLE,  a  law-term,means  a  single  woman. 
FIRE  INSURANCE,  to  what  applied,  398. 
by  whom  effected,  398. 
different  kinds  of  companies  for,  398,  399. 
method  of,  400. 

FORECLOSURE  OF  MORTGAGE,  explained,  492. 
FOREIGN  AND  INLAND  BILLS,  166, 107. 
FLORIDA,  law  as  to  rights  of  married  women 

in,  20. 
FRAUD,  annuls  all  obligations  and  all  contracts 

tainted  by  it,  47. 

mere  silence  in  seller,  in  general,  is  not,  122. 
vitiates  and  avoids  all  sales,  121. 
may  be  waived,  when,  121. 
is  waived,  when  action  is  brought  to  en- 
force the  contract,  121. 
statute  of,  purposes    and  provisions,  136, 
137,  UO. 


FREIGHT,  is  not  earned  unless  the  goods  are 

carried  to  place  of  destination,  323,  324. 
rule  for,  "  pro  rata  itiueris,"  323,  324. 
cannot  be  earned  by  illegal  voyage,  326. 
paid  in  advance,  not   afterwards   earned, 

must  be  repaid,  325. 
party  receiving  goods  becomes  liable  for, 

325. 
lender  on  bottomry  bond  has  no  right  to, 

326. 
mortgagee  not  in  possession  has  no  right  to, 

326. 
is  payable  when  goods  are  delivered,  to 

specie,  though  damaged,  3-6. 
word,  used  how,  320,  321.    ' 
law  of,  321. 
meaning  of,  3(19. 
interest  in,  309. 
subject  of  insurance,  369. 


O. 


GARNISHES    PROCESS.  — See     Recovery    of 

Debts,  599. 
GENERAL  AVERAGE,  331,  395. 

sacrifice  must  be  voluntary,  necessary,  and 

effectual,  331. 
law  of,  rests  on,  332. 
goods  not  contributed  for,  when,  332. 
held  for  contribution,  334. 
when  jettisoned,  owner  liable  to  contri- 
bution, 337. 
value  of  insured,  367. 
rules  relative  to  total  loss  of,  &c.,  395. 
GENERAL  AGENCY.  —  See  Agency,  331. 
GENERAL  AGENT,  master  of  ship  is,  339. 
GEORGIA,  law  as  to  rights  of  married  women 

in,  20. 
GUARANTOR,  who  is,  130. 

who  pay  principal's  debt,  may  demand  from 

the  creditor  the  securities  he  holds,  131. 
not  bound,  unless  he  has  knowledge  of  the 

acceptance  of  his  guaranty,  131. 
discharged,  ii  principal's  liability  is  changed 

without  guarantor's  consent,  131. 
discharged,  if  the  liability  is  extended  by 

law,  132. 

not  always  discharged  by  creditor's  giving 
debtor  some  accommodation  or  indul- 
gence, 132. 

should  have  reasonable  notice  of  princi- 
pal's failure,  133. 
of  a  note  or  bill,  is  not  entitled  to  as  strict 

notice  as  indorser  is,  181. 
GUARANTY,  incidents  of,  130, 133. 
not  generally  negotiable,  130. 


INDEX. 


671 


GUARANTY,  may  be  enforced  when  original 
debt  cannot  be,  130. 

contract  of,  construed  strictly,  130,  131. 

unless  by  sealed  instrument,  must  be  sup- 
ported by  a  consideration,  131. 

not  binding  unless  accepted,  131. 

specific,  is  not  revocable,  132. 

if  by  an  official,  he  is  not  bound  personally, 
133. 

margin,  what  is,  134, 135. 

oral,  prevented  by  law,  137. 

effect  of  changing  membership  in  the,  226. 
GUARDIANS,  law  of,  powers  and  duties  of,  655. 


H. 


HOLDER,  what  he  may  do  with  a  bill  or  note, 

171. 
of  negotiable  paper,  rights  and  duties  of, 

171. 
of  bill,  it  is  prudent  for  him  to  present  the 

bill  for  acceptance  without  delay,  172. 
ill  health  on  part  of,  may  excuse  delay  in 

presentment,  173. 

may  refuse  a  qualified  acceptance,  187. 
may  cancel  the  acceptance,  187. 
is  not  obliged  to  receive   acceptance  for 

honor,  188. 

HOMESTEAD,  law  of,  600.  . 

HUSBAND,  bound  to  support  his  wife  while  she 

lives  with  him,  or  if  he  sends  her  away 

without  good  cause,  37. 
a  man  is  bound  to  support  as  his  wife  one 

whom  he  lives  with,  and  represents  as  his 

wife,  37. 
may  indorse  a  note  or  bill  given  to  the  wife 

before  marriage,  186. 


IGNORANCE  OF  LAW,  excuses  no  one,  47. 
ILLINOIS,  law  as  to  rights  of  married  women 

in,  21. 
INDIANA,  law  as  to  rights  of  married  women 

in,  21. 

INDORSEE  of  bill  of  exchange,  151. 
INDORSEMENT,  is  what,  184. 

by  law  merchant,  bills  and  notes  payable 
to  order  are  rightfully  transferred  only 
by,  183. 

in  full,  or  in  blank,  183. 
aa  to  special,  184. 

Joint  payees  who  are  not  partners  must 
join  in,  183. 


INDORSEMENT,  the  signatures  of  all  previous 

indorsers  are  admitted  by  each,  185. 
may  be  restored,  if  struck  out  by  mistake, 

185. 
may  be  made  on  the  paper  before  the  note 

or  bill  be  drawn,  186. 
in  blank,  or  in  full,  what  they  are,  162. 
INDORSEH,  each  admits  by  his  indorsement  the 

genuineness  of  each  previous,  185. 
may  make  a  bill  payable  to  himself  alone 

by  special  indorsement,  185. 
of  bill  of  exchange,  151. 
rights  and  duties-  of,  183. 
INFANTS,  or  minors,  chap,  iii.,  7. 
who  are,  8. 

when  persons  cease  to  be,  8. 
promise  of,  if  not  for  necessaries,  voidable, 

by  the  infant,  8. 
promise  of,  for  necessaries,  not  voidable 

by  him,  9. 
promise    of,   may   be   confirmed   without 

words,  9. 

liable  for  frauds  of  any  kind;  therefore 
liable  if  he  obtains  goods  or  money  by 
representing  himself  of  full  age,  10,  11. 
ratifies  his  promise  to  pay  by  keeping  tTie 

thing  for  which  he  promised  to  pay,  9. 
necessaries,  what  are,  10. 
if  one  avoids  a  contract  because  made  In 
infancy,  he  can  take  no  benefit  from  it,  10. 
liable  for  torts,  or  wrong-doing,  10. 
IOWA,  law  as  to  rights  of  married  women  in, 

22. 

INSANITY,  of  principal  or  agent,  revokes  au- 
thority, 205. 

INSTRUMENTS,  irregular  and  ambiguous,  163. 
INSCRABLE  INTEREST,  and  how  discharged, 

367,  368. 
INSURANCE,  policy  of,  362. 

company  not  bound  to  insure  all,  362. 

marine,  how  effected,  362,  363. 

how  affected  by  date  of  policy,  363. 

proposals  for,  363. 

constructive,  363. 

who  may  effect,  363. 

how  it  is  construed,  364. 

sustained  by  compliance  with  registry  laws, 

how,  369. 
simultaneous,  370. 
effect  of  prior,  370. 
on  freight,  369. 
double,  371. 
against  piracy,  382. 
against  robbery,  382. 
against  theft,  382. 
terminates  when,  388,  389. 
purpose  and  principle  of  the  law  of,  396. 


672 


INDEX. 


INSURANCE,  effect  of,  in  case  of  partial  loss, 
397. 

contract  for,  when  complete,  400. 

application  how  obtained,  402. 

on  what  conditions  made,  402. 

must  be  actual  authority  to  make,  409. 

double,  not  allowed,  409. 

double,  how  avoided  by  charter  of  company, 
410. 

evidence  of  overstatement  of  loss  in,  419. 

fire,  no  rule  in,  for  deducting  one-third  new 
for  old,  419. 

companies  require  sworn  statement  of  cir- 
cumstances of  loss,  420. 

against  accident,  disease,  and  dishonesty 

of  servants,  432. 

INSURED,  must  communicate  what  things,  370, 
377. 

must  account  for  proceeds  of  sale  when 
made  by  the  master  under  necessity, 
392. 

may  abandon,  when,  393. 

become  members  of  mutual  insurance-com- 
panies, 402. 

party,  bound  by  what  rules,  402. 
*••  all  become  members  when  insured  in  mu- 
tual insurance-companies,  402. 

must  have  an  interest  in  the  property  in- 
sured, 416. 

when  liable  for  assessments  after  loss  un- 
der mutual  policy,  419. 

must  have  an  interest  in   life-irfsuranee, 

427. 
INSURER,  how  bound  by  the  contract,  362. 

discharged  by  concealment  or  misrepresen- 
tation, 37G.  * 

liable  for  what  risks,  379,  380. 

When  liable  for  collision,  381. 

how  far  answerable  for  perils  of  the  sea, 
381. 

held  for  losses  by  fire,  382. 

liable  for  theft  after  shipwreck,  382. 

liable  for  misconduct  of  the  crew,  when, 
383. 

when  liable  under  the  general  clause,  384. 

liabilities  in  case  of  prohibited  or  contra- 
band trade,  3S4. 

liabilities  in  case  of  capture,  arrest,  or  de- 
tention, 383. 

how  affected  by  detention,  383. 

how  affected  by  deviation,  385. 

by  payment  for  loss,  acquire  the  insured's 
claim  for  contribution,  &c.,  394,  396. 

when  discharged  by  alterations,  406. 

must  know  whom  they  insure,  409. 
should  be    informed  of    what   facts,  412, 
413. 


INSURER,  risk  incurred  by,  413,  414. 

when  not  chargeable,  414. 
whether  held  for  loss  occasioned  by  negli- 
gence of  the  insured  or  his  servants,  414. 

liable  for  buildings  blown  up  to  check  fires, 
414. 

when  liable  for  property  destroyed  by  light- 
ning, 414. 

never  held  to  pay  more  than  sum  insured, 

410. 

INSURERS,  against  fire,  not  held  to  pay  for  loss 
of  profits,  418. 

pay  whole  amount  lost,  when  covered  by 
policy,  418. 

have  a  right  to  rebuild  premises  when  de- 
stroyed, 418. 

INTENTION,  in  construction  of  policy,  401. 
INTEREST,  is  what,  209. 

may  be  demanded,  on  what  grounds,  269. 

is  allowed  by  law,  how,  269. 

not  generally  recoverable,  when,  270. 

laws  regulating,  270. 

when  usurious,  269. 

banks  receive  more  than  legal,  274. 

compound,  incidents  of,  276,  277. 

compound,  is  not  strictly  usurious,  276. 

method  of  computing,  277. 

insured's  claim  founded  on,  300. 

insurable,  307. 

insurable,  how  discharged,  308. 
i      of  the  insured,  407. 

of  mortgagor  and  mortgagee,  as  to  insuring 
mortgaged  property,  407. 

who  have  an  insurable  interest,  407,  408. 

exception  as  to  the  rule  of  any  one  allowed 
to  insure  property  as  his  own  In  which 
he  has  a  legal  interest,  408. 

of  the  insured  in  life-insurance,  427. 


jr. 


JOINT-TENANCY,  and  JOINT-TENANTS,  law- 
terms;  when  two  or  more  persons  own 
any  tiling  jointly,  us  joint-tenants,  if  one 
dies,  the  survivor  or  survivors  take  the 
share  or  interest  of  the  deceased  person, 
2-->9. 

JUDGMENT,  confession  of,  189. 

JURISDICTION,  over  salvage  cases,  338. 


K. 

KENTUCKY,  law  as  to  rights  of  married  women 
In,  23. 


INDEX. 


673 


LANDS  can  be  transferred  by  deed  only,  433. 
LAW-MERCHANT,  what  is  meant  by  it,  6. 
LAW-TERMS,  some  explanation  of,  7. 
LAW  OF  PLACE,  167. 

what  is  meant  by,  305. 

as  influencing  contracts,  307,  308. 

general  principles  of,  305,  30Q. 

of  a  State  binds  all  persons  and  things  with- 
in the  limits  of  the  State,  305,  306. 

has  no  force  beyond  the  limits  of  the  State, 
306. 

of  foreign  States,  have,  by  comity,  a  quali- 
fied influence,  306. 

of  contract,  governs  the  effect  of  the  con- 
tract in  regacd  to  personal  property,  306. 

Of  real  property,  governs  the  construction 

of  the  contract,  306. 
LAW,  of  shipping,  how  considered,  311. 

of  freight.  3*1. 

of  foreign  country  is  presumed  to  be  the 
same  as  in  the  place  of  suit,  in  absence 
of  testimony,  108. 
LAWS,  regulating  pilotage,  346. 

regulating  interest  and  usury,  277. 
LAY-DAYS,  are  what,  329. 
LEASE,  definition  of  contract  of,  517. 

what  passes  to  tenant  under,  517. 

duties  and  obligations  of  landlord  under, 
517. 

rights  and  duties  of  tenant  under,  517, 520. 

privilege  of  underletting  by  tenant  under, 
519. 

tenant  when  entitled  to  crops  sown  during 
the,  519. 

rights  of  tenant  after  expiration  of,  519, 
520. 

what  fixtures  may  be  removed  at  expira- 
tion of,  520, 521. 

LENDER  may  charge  extra  price  for  risk  in-  • 
curred,  273, 274. 

on  bottomry  bond  has  no  right  to  freight, 

326. 
LIABILITY  of  an  agent,  200. 

o£  carrier  for  baggage  of  passengers,  257, 
258. 

of  carrier  may  be  modified  by  notice,  255, 
256. 

of  carrier,  to  third  persons,  for  injury  done 
them  by  carrier  or  servants,  259, 200. 

of  insurers,  not  affected  by  risk  of  the 
market,  397. 

none  attaches  to  the  insurers  for  a  loss  oc- 
curring by  natural  or  other  causes  not  in- 
sured against,  before  a  loss  insured 
against  happens,  398. 


LIABILITY  of  master  for  discharging  seamen, 

345. 
LETTER,  contract  by,  50. 

"        "  completed  when  letter  of 
acceptance  mailed,  50. 
LIBEL,  when  presented,  336. 
LIBERTY  POLICIES,  386. 

LIEN,  means  the  right  of  the  seller  to  retain  the 
property  till  some  claim  he  has  is  satis- 
fied, 112. 

is  lost  by  the  seller,  if  the  goods  are  deliv- 
ered, 601. 

of  bottomry  bond,  depends  not  on  posses- 
sion, 320. 

ship  has,  on  goods  for  freight,  323. 
of  seamen,  on  ship  and  freight  for  wages, 343. 
of  material  men,  for  supplies  to  ships,  347. 
of  carrier,  on  goods,  252. 
of  mechanics  and  material  men,  law  of, 

with  forms  and  directions,  601. 
LIFE-INSURANCE,  purpose  and  method  of,  423. 
how  effected,  423. 

rules  of  contracts  applicable  to,  423. 
premium  for,  how  paid,  424.  t 

LIFE-POLICIES,  assignable  at  law,  427,  428. 
LIMITATIONS,  statute  of,  263. 

statute  of,  construction  of,  264. 
statute  of,  new  promise  under,  264,  265. 
statute  of,  part  payment  under,  265,  266. 
statute  of,  when  period  of  limitation  begins 

under,  267,  268. 

statute  of,  statutory  exceptions  under,  267. 
statute  of,  does  not  affect  collateral  secu- 
rity, 268. 
of  owner's  liability  for  master's  misdeeds, 

342. 

Loss,  how  divided  for  average  and  contribu- 
tion, 334. 

and  abandoment,  389. 
no  total,  by  abandonment,  unless  the  injury 

exceeds  fifty  per  cent,  391. 
by  jettison,  salvage,  &c.,  included  in  esti- 
mate of  the,  391. 
after  abandonment,  must  be  made  up  by 

owner,  394. 

insurers  entitled  to  possession  after  pay- 
ment for  total,  394. 

of  several  insured  shipments,  there  may  be 
total  loss  of  one,  partial  of  another,  395. 
when  partial,  396. 
rule  for  averaging,  by  allowing  one-third 

for  new,  396. 

third  part  of,  what  deducted  from,  397. 
what  would  be  evidence  of  overstatement 

of,  419. 

LCVISIANA,  law  as  to  rights  of  married  women 
in,  23. 


676 


INDEX. 


PABTKEKS,  should  give  notice  of  retirement, 
219. 

each  one  is  agent  for  all,  220. 

one  cannot  bind  the  firm  by  a  guaranty,  a 
letter  of  credit,  or  submission  to  arbitra- 
tion without  authority,  221. 

may  bind  the  firm  by  instrument  under 
seal,  221. 

must  act  as  such,  to  bind  the  firm,  222. 

reception  of  a  new,  makes  a  new  firm,  222. 

borrowing  money  for  partnership  purposes 
creates  a  partnership  debt,  223. 

obtaining  credit  for  partnership  purposes 
makes  the  firm  liable,  223. 

partner  in  general  cannot  sue  another  for 
claim  growing  out  of  partnership  inter- 
ests, 224. 

either  may  sue  for  balance  on  adjustment 
of  accounts,  225. 

may  sue  his  copartner  for  money  advanced 
before  partnership  formed,  225. 

who  pays  more  than  his  share  of  a  debt  must 
charge  the  firm,  225. 

the  firm  may  sue  for  goods  sold  in  the  name 
of  one,  226. 

surviving,  are  tenants  in  common  only  with 

representatives  of  deceased,  229. 
PARTNERSHIP,  is  not  created  by  single  joint 
•transaction,  214. 

all  persons  competent  to  do  business  on 
their  own  account  may  enter  into,  214. 

when  created,  214. 

no  especial  form  is  necessary  for,  215. 

may  be  formed  how,  215. 

usually  is  but  one  business  name  to  a,  217. 

principal  test  of,  is  participation  in  profits, 
216. 

may  hold  real  as  well  as  personal  estate, 
219,  220. 

can  have  no  seal  at  law,  221. 

money  lent  one  partner  for  partnership 
purposes,  makes  a  debt  of  the,  223. 

firm  is  liable  only  to  one  who  deals  with  a 
partner  in  good  faith,  223. 

may  be  liable  for  injury  caused  by  criminal 
acts  of  a  partner,  224. 

funds  of,  must  first  be  applied  to  partner- 
ship debts,  227. 

creditors  cannot  attach  private  property 
till  private  creditors  are  satisfied,  227. 

property  goes,  in  case  of  death  of  one  part- 
ner, to  the  others,  only  for  purpose  of  set- 
tlement, 229. 

limited,  requisites  of,  230. 

effect  of  dissolution  of,  229,  230. 

dissolution  of,  held  to  avoid  policy  of  in- 
surance, 417. 


TART  OWNERS  OF  SHIPS    rights  and 
tions  of,  316-318. 

of  ships,  not  necessarily  partners,  316. 

may  sell  his  share  of  ship,  316. 

all  arc  liable  for  repairs  to  ship,  316. 

ship's  husband,  is  commonly  one  of,  317. 
PASSAGE-MONEY,  rules  of,  analogous  to  thos« 

of  freight,  327.  ' 

PASSENGER,  may  be  salvor,  337. 
PATENTS,  the  law  of,  558. 

what  may  be  patented,  558. 

who  is  entitled  to  a  patent,  558. 

what  will  prevent  the  granting  of  a  patent, 
658. 

mode  of  proceeding  to  obtain  a  patent,  559. 

applications ;  wkat,  and  how  to  be  made, 
559. 

specifications;  what,  and  how  to  be  made 
500. 

oath,  or  affirmation ;  what,  and  how  to  b« 
made,  562. 

foreigners ;  what  they  must  do,  562. 

drawings;  how  they  must   be   made   and 
sent  to  the  patent-office,  562. 

model ;  how  it  must  be  made  and  sent  to  the 
patent-office,  563. 

photographs;    when   admitted,   and    how 
prepared,  564. 

examination,  when,  and  how  made  in  the 
patent  office,  564. 

protests;  what  they  must  be,  and   their 
effect,  565. 

appeals  to  the  examiners  in  chief,  566. 

appeals  to  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  566. 

rules  regulating  the  above  appeals,  567. 

interferences,  568. 

re-issues,  and  surrender,  569. 

disclaimers,  471. 

extensions,  572. 

designs,  how  they  may  be  patented,  574. 

foreign  patents,  do  not  prevent  taking  one 
here,  576. 

caveats,  577. 

assignments  and  grants  of  patent-righti>,579. 

fees  payable  to  the  patent-office ;  what,  and 
how  payable,  581. 

testimony,  how  taken  and  transmitted,  583. 

papers,  filing  in  the  office,  and  preservation 
there,  5M5. 

amendments   in   specification  and  claim, 

when  and  how  made,  586. 

TRADEMARKS,  protected;  and  sundry  provis- 
ions of  the  statute  respecting  them,  and 
how  they  should  be  described  and  record- 
ed, given  in  full,  588. 


IXDEX. 


677 


TRADEMARKS,  information  and  assistance  given 

by  the  office.  590. 
PAYEE,  of  bill  of  exchange,  157. 

of  promissory  note,  158. 

must  be  designated,  162. 
PAYMENT,  how  may  be  made,  141. 

negotiable  bill  or  note,  is  not  an  absolute, 
142. 

appropriation  of,  among  several  debts,  142, 
143. 

may  be  appropriated  at  time  of,  by  payor, 
H3. 

Impossibility  of  presenting  a  bill  for,  ex- 
cuse some  delay,  175. 

time  of,  in  negotiable  paper,  must  not  de- 
pend on  a  contingency,  160. 

of  negotiable  paper,  must  be  in  money,  160. 

of  bills,  notes,  &c.,  is  to  be  demanded 
promptly,  though  need  not  be  done  in- 
stantly, 176. 

demand  of,  is  sufficient,  if  made  at  usual 
residence  or  place  of  business  of  payer, 
174. 

what  constitutes  demand,  and  refusal  of, 
174. 

bankruptcy  or  insolvency  no  excuse  for  not 
demanding,  174,  175. 

bills  on  demand  should  be  presented  in  a 
reasonable  time  for,  176. 

every  demand  for,  should  be  made  at  the 
proper  place,  176. 

pert,  takes  debt  from  under  statute  of  limi- 
tation, 265,  206. 

debtor   may   appropriate,  to   any  one   of 

several  debts,  266. 
PENALTY,  of  a  bond,  97. 

for  not  signing  shipping1  articles,  343. 

for  discharging  seamen  without  their  con- 
Bent,  344. 
PENSIONS,  abstract   of  the   laws   concerning 

every  class  of  pensions,  with  the  rules  of 

the  commissioner  of  pensions,  and  forma 

and  directions  for  all  applicants,  605-639. 
PERILS,  of  the  sea,  381. 

by  fire,  382. 

PILOTS,  responsibilities  of,  346. 
PLACE,  what  is  meant  by  law  of,  305. 

general  principles  of  law  of,  305,  306. 

law  of,  influencing  contracts,  307,  308, 
POLICY,  of  insurance,  362. 

subsequent  additions  to,  364. 

of  insurance,  how  affected  by  assignment, 
364. 

of  insurance,  assignment  of,  364. 

of  insurance,  when  altered,  364. 

when  open  or  valued,  365. 

Wager,  365. 


POLICY,  value  Insured  In  an  open,  366. 

memorandum  in,  371. 

express  warranty  in,  372. 

embraces  what  perils,  379. 

providing  against  barratry  by  clause  in,  S83, 

liberty,  388. 

as  to  total  loss,  in  the  provisions  of  the,  391. 

valuation  in  the,  generally  determines  the 
estimate  of  the  loss,  391. 

of  tire-insurance,  what  necessary  to  execu- 
tion of,  400. 

when  delayed,  and  company  not  bound, 
400. 

subsequent  •  ratification  by  an  agent,  what 
effect,  400. 

of  fire-insurance,  how  constructed  as  to  de- 
scription, 401. 

Intention  must  be  expressed  in,  401. 

words  "  stock  in  trade,"  include  what  in, 
401. 

memorandum  on  back  of,  402. 

mistake  in,  402. 

when  some  parts  written,  some  printed, 
403. 

containing  scale  of  premiums,  403. 

when  void,  for  false  statement  of  applicant, 
403. 

how  affected  by  greater  hazard  for  a  time, 
405,406. 

when  made  by  consignee  will  be  construed 
to  cover  his  interest  only,  when  no  inter- 
est is  expressed,  408. 

by  commission-merchant,  in  his  own  name, 
when  it  may  cover  goods  of  various  con- 
signors, 408. 

provisions  against  double  insurance,  409, 
410. 

when  separate  statements  are  part  of,  411. 

indorsement  made  upon,  may  take  effect  as 
part  of,  though  made  before  executed, 
411. 

when  statement  not  construed  as  part  of, 
411. 

difference  between  marine  and  fire,  412. 

when  avoided  by  misrepresentations  or  con- 
cealments, 412. 

always  avoided  by  warranty  broken,  412. 

parties  may  make  a  valued,  415. 

is  personal  contract  between  the  parties, 
416. 

against  fire,  contains  provision  against  as- 
signment, 416. 

production  of,  certificate  of  loss,  is  condi- 
tion precedent  to  payment,  417. 

difference  of  adjustment  between  marine 
and  fire,  418. 

assignment  of,  should  be  made  on  it,  421. 


678 


INDEX. 


POLICY,  assent  of  insurers  had  best  be  obtained 
to  assignment  of,  422. 

time  of  death  in  case  of  life-insurance  has 
important  effect  on  payment  of  the,  425. 

restrictions  on  the  life  insured  in  the,  426. 

when  avoided  by  death  by  suicide,  426. 

takes  effect  from  date,  387. 

never  attaches  in  case  of  unreasonable  de- 
lay in  sailing,  387. 

how  affected  by  the  words  "  at,"  "  to,"  and 
"  at  and  from,"  387,  388. 

on  goods  attaches  when,  387. 
PORT,  what  is  meant  by,  in  policy,  388. 
POWER,  to  sell,  implies  power  to  warrant,  &c., 
197. 

of  ship-master,  338-340. 

of  attorney,  law  of,  358. 
PREMIUM,  when  due  and  how  paid,  377,  378. 

when  may  be  returned,  378. 

how  paid  in  case  of  life-insurance,  424. 

in  case  of  life-insurance  when  paid,  425. 

extra,  required  in  what  cases,  426. 
PRESENTMENT,  for  acceptance,  172. 

should  be  made  during  business-hours,  173. 

should  be  made  to  drawee  or  his  agent,  173. 

for  demand  of  payment,  173,  174. 

for  demand  of  payment,  same  for  notes  and 
bills,  173. 

for  demand  of  payment,  universal  rule  of 

law  merchant  in  regard  to,  174. 
PRINCIPAL,  Is  bound  by  acts  of  the  agent,  192, 
I'M. 

may  confer  authority  on  agent  how,  194. 

bap  power  of  revocation  in  general,  198. 

when  undisclosed,  may  show  that  the  nom- 
inal party  was  actually  his  agent,  200,  201. 

is  responsible  for  injuries  resulting  from  a 
fraudulent  representation  of  the  agent, 
201. 

Is  bound  by  payment  of  money  to  an  agent 
only  when  done  in  regular  course  of  busi- 
ness, 201. 

not  responsible  for  criminal  acts,  unless  he 
expressly  commanded  them,  202. 

who  accepts  the  benefit  of  an  act  done  by 
bis  agent  discharges  him  from  responsi- 
bility therefor,  202. 

general  rule  Is,  he  may  revoke  his  agent's 
authority  at  pleasure,  205. 

cannot   revoke  authority  given  to  factor 

after  advances  made,  287. 
PROFITS,  how  valued  and  insured,  3C6. 
PROMISE,  of  promissory  note,  158. 

must  be  supported  by  a  consideration,  90. 

to  pay  another's  debt,  when  original,  when 
collateral,  137,  138. 

in  negotiable  paper,  must  be  absolute,  160. 


PROMISE,  barred  under  statute  of  lirnl  atlons, 
263. 

new,  sufficient  to  take  case  from  statute  of 
limitations,  264. 

new,  not  implied  from  mere  acknowledg- 
ment, 205. 

implied  by  part  payment,  265,  266. 

can  never  be  enforced  by  one  who  knew  the 
performance  thereof  impossible,  94. 

cannot  be  enforced  when  supported  only 
by  a  valueless  consideration,  though  it 
was  at  first  apparently  good.  95. 

when  severable,  what  may  or  may  not  be 
enforced,  95. 

for  work  to  be  done,  when  broken  without 
good  cause  by  promisor,  he  cannot  re- 
cover, 95. 

PROMISOR,  of  promissory  note,  158. 
PROMISSORY  NOTE,  differs  from  bill  of  ex- 
change, 158. 

ia  what,  158. 

not  negotiable  when,  159. 

on  demand  is  considered  as  intended  as  a 

continuing  security,  172. 
PROPERTY,  legal  meaning  of  word,  110. 

of  partnership  is  bound  to  pay  partnership 
debts,  227. 

Insured,  description  of,  378,  379. 

insured  must  contribute  to  general  average 
when,  395. 

claim  for  contribution  acquired  by  owners 
of  sacrificed,  396. 

under  insurance,  effect  of  alterations  on, 

405,  400. 

PROPOSALS,  of  insurance,  303. 
PROTEST,  and  notice,  177-186. 

demand  and,  must  be  made  according  to 
law  of  the  place  where  the  bill  is  payable, 
178. 

loss  of  bill  no  excuse  for  not  protesting, 
178. 

should  be  made  on  day  of  demand  and  re- 
fusal, 178. 

notice  of,  various  incidents  of,  ITS,  179. 
PROVISION  by  statute  in  behalf  of  seamen,  3-12. 

of  seamen  provided  by  owner,  313. 
PUBLIC  PROPERTY,  retained  for  contribution, 

334. 
PURPOSE  and  use  of  this  book  (chap  I.),  1. 


REAL  PROPERTY,  may  be  held  by  partnership, 

219,  220. 
oral  bargain  for,  of  no  effect,  443. 

REASONABLE  TIME,  allowed  by  law,  for  an  ac- 
ceptance of  an  offer;  what  this  time  is,  48. 


INDEX. 


679 


RECEIPTS,  definition  of,  144. 

open  to  explanation  or  contradiction,  145. 
in  deed,  may  be  shown  not  for  value,  439. 
RECORDING,  of  deeds,  essentials  of,  437,  438. 
RECOVERY:   OF   DEBTS,    attachment,   trustee 
process,  garnishee  processs,  homestead, 
and  exemption  from  execution,  599. 
REGISTRATION  OF  SHIPS,  311-313. 
RELEASE,  differs  from  receipt,  145. 

in  the  nature  of  a  contract,  requires  consid- 
eration, 145. 
REPAIRS,  of  ship,  333. 

value  of  old  material  should  be  deducted  in 

case  of,  397. 

how  affecting  insurer  and  insured,  406. 
REPRESENTATION,  and  warranty,  410. 
differs  from  a  warranty,  411,  412. 
how  affecting  the  policy,  411. 
if  in  writing  or  in  parol,  412. 
in.  case  of  life-insurance,  429-431. 
RETRACT,  when  and  how  one  may  retract  his 

offer,  49. 
REVOCATION  is  in  general  within  the  power  of 

the  principal,  198. 
of  submission  may  be  made  by  either  party, 

240. 
of  submission,  the  other  party  has  damages 

for,  241. 

of  submission,  notice  must  be  given  of,  241. 
of  submission,  bankruptcy  does  not  amount 

to,  241. 

of  an  offer,  when,  how,  by  whom,  50. 
RIGHTS,  of  action  growing  out  of  agency,  200, 

201. 

of  the  firm  against  third  parties,  226. 
of  creditors  in  respect  to  partnership  funds, 

227,  228. 

of  seamen  in  sickness,  344. 
of  seamen  to  be  brought  home,  344. 
and  duties,  of  maker  of  negotiable  paper, 

171. 
and  duties,  of  holder  of  negotiable  paper, 

171. 

and  duties  of  indorser,  1S3,  186. 
and  duties  of  acceptors,  189. 
RISK,  common  sea,  332. 

parties  may  agree  as  to,  385. 
when  terminated,  388,  389. 
rules  concerning  "  hazardous,"  403,  404. 
RULES,  in  bankruptcy,  298-304. 

in  respect  to  passage-money,  analogous  to 

those  of  freight,  327. 
regulating  salvage,  337. 
governing  collision,  341. 
for  steam-vessels  when  meeting  others,  341. 
of  pilots,  316. 
concerning  "  hazardous  "  risks,  403,  404. 


SACRIFICE,  In  average,  how  justified,  333. 
SALE,  Is  to  be  immediately  followed  by  pay- 
ment   and    delivery,    unless    otherwise 
agreed  upon,  111. 

is  made  when  the  agreement  is  made,  111. 

what  constitutes  a,  110. 

distinction  between  agreement  and,  110. 

every  actual,  is  an  executed  contract,  though 
payment  may  remain  to  be  made,  110. 

executory  contract  for,  is  not  a  present,  110. 

of  goods,  is  exchange  thereof  for  money, 
110. 

when  bargain  does,  or  does  not  become  a, 
110. 

is  made  when  the  agreement  is  made,  111. 

is  not  complete  so  long  as  something  re- 
mains to  be  done  to  the  goods  by  the  sell- 
er, 113, 114. 

Is  not  necessarily  complete  on  the  comple- 
tion of  some  time  agreed  on,  or  happening 
of  some  event,  114. 

can  be  none,  of  chattels  or  goods  not  in 
existence,  114,  115. 

is  none,  but  for  a  price  that  is  certain  or 
capable  of  being  made  so,  115. 

when  once  effected,  the  buyer  has  a  right  to 
possession,  on  payment,  115. 

when  avoided  by  mistake,  or  defect  in  sub- 
ject-matter, 118. 

when  many  things  bought  at  one,  right  of 
buyer  as  to  refusing  a  part  without  all, 
118,  119. 

buyer  may  have  right  of  redelivery  by 
terms  of  bargain,  119. 

with  warranty,  122. 

of  one's  business,  when  good,  when  void, 
127. 

of  notes,  when  amounting  to  usury,  274- 
276. 

of  ships,  how  regulated,  314,  315. 

of  vessel,  form  of  bill  for,  347. 

when  made  by  master  under  necessity,  pro- 
ceeds must  be  accounted  for  by  insuredj 
392. 
SALVAGE,  what  constitutes,  335, 338. 

how  enforced,  336. 

proceedings  for,  336. 

what  proportion  of  value  for,  337. 

how  distributed  among  salvors,  333. 
SALVORS,  who  are,  335. 

passenger  may  be,  337. 
SEAL,  of  deed,  is  what,  434. 

notarial,  evidence  of  dishonor  of  foreigp 

bill,  178. 
SEAMEN,  rights  of,  in  sickness,  344. 


680 


IXDEX. 


SEAMEN,  discharge  of,  without  consent,  344.       ! 
if  discharged  without  their  consent,  have  a 

right  to  be  brought  home,  344. 
desertion  of,  how  punished,  345. 
punishment  of,  315. 
SEAWORTHINESS,  warranty  of,  374,  375. 

standard  for,  375. 
SELLER,  has  a  lien  on  goods  for  payment, 

112. 

may  resell  goods  on  notice  given  the  buyer, 
if  the  buyer  does  not  pay  in  a  reasonable 
time,  112. 
cannot  sell  and  give  good  title,  if  he  has 

only  right  of  possession,  113. 
liability  of,  as  to  keeping  goods,  110. 
obligations  of,  as  to  delivery,  11C,  117. 
may  annul  a  sale  he  was  induced  to  make 

by  fraud,  121. 
not  necessarily  bound  by  receipt  in  deed 

439. 
SHERIFF,  as  to  levy  and  sale  by,  of  partnership 

interests,  223. 

SHIPS,  are  personal  property,  311. 
registration  of,  311-313. 
transfer  of,  should  be  followed  by  posses- 
sion, 315. 
what  is  meant  by,  in  passing  property  by 

sale  of,  315. 

have  a  lien  on  goods  for  the  freight,  323. 
when  repaired,  contribution  for,  332. 
transfer  of  property  in,  314,  315. 
conveyances  of,  recorded,  314. 
mortgagee  of,  in  possession,  liable  as  owner, 

318. 

employment  of,  by  owner,  320,  327. 
SHIPPER,  cannot  abandon  goods  for  freight  so 

long  as  they  are  in  specie,  3~'G. 
SHIPPING,  articles  of,  343. 
SHIP-OWNER,  may  let  his  ship  to  others,  327. 
must  pay  for  goods  lost  by  his  fault,  or  the 

fault  of  his  ship,  327. 
SHIP'S-HUSBAND,  Is  commonly  part-owner,317. 

powers  of,  317,  318. 
SIGNATURE,  to  agreement,  when  it  may  be  in 

any  part  of  the  paper,  140. 
to  negotiable  paper,  how  it  may  be  writ- 
ten, 160. 

SINGLE  WOMEN,  how  their  property  may  be 
put  safely  under  trust,  and  secured  to 
them,  in  view  of  their  marriage,  37. 
SPECIFICATIONS,  should  accompany  building 

contracts,  "3. 
STAJIP  ACT,  657. 

schedule  of  stamps  required  on  different 

instruments,  657. 

remarks  on  provisions  of  Stamp  Act,  663. 
STATUTE  OF  LIMITATIONS.  —  See  Limitations. 


STATUTES,  as  distinguished  from  common  law, 

5. 

of  bankruptcy,  abstract  of,  279-297. 
provision  respecting  seamen,  342. 
of  frauds,  purpose,  and   provisions,    136, 

137, 140. 
STOPPAGE  IN  TRANSITO,  128. 

exists  only  in  actual  insolvency,  128. 

must  be  effected  by  seller,  128. 

hindered  by  possession  of  buyer,  actual  o» 

constructive,  129. 

barred  by  bona  fide  sale  by  buyer,  129. 
a  seller  exercising  right  of,  does  not  re- 
scind the  sale,  but  holds  the  goods  as 
property  of  the  buyer,  129. 
SUBMISSION,  to  arbitrators,  may  be  revoked  by 

either  party  before  award  made,  240. 
other  party  has  damages  for  revocation  of, 

241. 

SUBSCRIPTION  PAPERS,  law  as  to  them,  92. 
SURVEY  OF  VESSELS,  when  ordered,  344. 


TENANCY  by  the  curtesy,  a  law-term,  ex- 
plained, 15. 
TENDER,  what  constitutes  a  good,  141. 

lawful,  and  payment  in  court,  is  a  good  de- 
fence to  action  for  debt,  142. 
TERMINI  of  voyage  and  risk,  387-389. 

must  be  distinctly  stated,  3S7. 
THINGS  IN  ACTION,  a  law-term,  explained,  15, 

10. 
THINGS  IN  POSSESSION,  a  law-term,  explained, 

15,  10. 
TITLE,  does  not  pass  by  sale  to  a  fraudulent 

party,  121. 
TORTS,  this  word  in  law  means  wrongs,  and 

includes  all  wrong-doing,  10. 
are  what,  270. 
TRADE,  contraband,  384. 

prohibited,  3S4. 

TRIAL,  for  salvage,  how  had,  338. 
TKUSTKE  PROCESS.  — See  Uecoveryof  Debt*. 
TRUSTEES,  a  law-term,  explained,  37. 
cannot  buy  trust  property,  204. 
may  insure  against  tire,  40ti. 


USAGE,  when  held  unreasonable,  57. 

of  fire-insurance  companies,  when  admit 

ted,  400. 
USURY,  what  is  meant  by,  2C9. 

law  in  regard  tp,  270. 


INDEX. 


681 


USURY,  what  is  necessary  to  constitute,  270, 

273. 

contract  for,  wholly  void,  271. 
when  sale  of  notes  amounts  to,  274-276. 


V. 


VALUE  RECEIVED,  effect  of  these  words  in 

negotiable  paper,  169. 

VALUE,  of  insured  goods,  how  determined,  367. 
VALUATION,  how  applied  to  insured  property, 

365,  3G6. 

how  understood  in  fire  policies,  415. 
mutual  companies  require  a  valuation  ex- 
pressed, 415. 
determines  what  the  insurers  must  pay  in 

case  of  total  loss,  416. 

VESSELS,  in  danger  of  collision,  duties  of,  342. 
VOYAGE,  in  respect  to  charter-party,  329. 
what  is  the  proper  course  for,  385. 
unnecessary  protraction  of,  is  a  deviation, 

386. 
may  be  changed  for  purpose  of  saving  life, 

386. 
new  voyage  substituted  for  one  agreed  on 

is  a  deviation,  386. 
policy  never  attaches  on  an  entirely  new, 

387. 
ship  may  visit  several  ports  by  permission, 

on  the,  386. 
where  and  when  terminated,  387. 


W. 

WAGES,  of  seamen,  how  regulated,  343. 
who  may  insure,  369. 
of  mariners,  not  insurable,  369. 
WAIVER,  of  fraud,  when  action  Is  brought  to 

enforce  the  contract,  121. 
WAEKANT,  steamboat,  form  of,  361. 
WARRANTY,  general,  particular,  limited,  ex- 
press, or  implied,  122. 
mere  declaration  of  opinion. Is  not,  122. 
breach  of,  does  not  always  authorize  buyer 
to  return,  123. 


WARRANTY,  provisions  sold  are  always  held  to 
be  sold  with,  125. 

what  is  held  to  constitute,  122-144. 

seller  pf  goods  in  possession  is  understood 
as  selling  with  warranty  of  title,  123. 

thing  sold  for  special  purpose  is  sold  with 
implied,  123. 

held  not  to  apply  where  an  ascertained 
article  is  bought,  124. 

bill  of  sale,  describing  articles  sold  amount* 
to,  124. 

express,  in  policy,  372. 

breach  of,  372. 

subjects  of  express,  373. 

of  sailing,  373. 

Of  neutrality,  373. 

implied,  373-375. 

of  seaworthiness,  374,  375. 

and  representation,  410. 

part  of  contract  of  insurance,  410. 

may  be  of  the  present  or  of  the  future,  410. 

continuing,  410. 

in  case  of  life-insurance,  429-431. 

deed,  clauses  in,  440,  441. 

in  quit-claim  deed,  441. 

effect  of,  on  subsequent  grantees,  442. 
WIFE,  may  always  be  an  agent  of  her  husband, 
36. 

is  his  agent,  with  authority  to  make  pur- 
chases on  his  account,  for  proper  domes- 
tic purposes,  36. 

loses  this  authority  if  she  needlessly  leaves 
his  house,  36. 

if  she  leaves  his  house  because  of  his  cruel- 
ty, she  carries  with  her  his  authority  to 
make  purchases  or  contracts  for  her 
proper  support,  37. 

if  she  carries  on  trade  as  a  single  woman, 
when  is  the  husband  liable,  38. 

when  the  assent  of,  is  necessary  to  pass  real 
estate,  437. 

effect  of,  joining  in  deed  with  husband,  442, 

443. 
WILLS,  the  law  of,  with  forms  and  directions 

for  making  and  executing,  (HO. 
WITNESSES,  to  deed,  law  and  practice  of,  430. 
437. 


INDEX  OF  FOKMS. 


AGREE51ENT  AND  CONTRACT. 

General  agreement,  sufficient  for  many 
purposes,  67. 

General  agreement,  as  used  in  the  Western 
States,  58. 

General  contract  for  mechanic's  work,  59. 

Agreement  for  purchase  and  sale  of  land, 
in  use  in  the  Middle  States,  59. 

Agreement  for  sale  of  land,  in  use  in  the 
"Western  States,  60. 

Agreement  for  warranty  deed,  used  in  the 
Western  States,  62. 

Contract  to  convey  real  estate,  in  use  in  the 
Middle  States,  63. 

Agreement  for  the  purchase  of  an  estate, 
in  use  in  New  England,  64. 

Agreement  for  the  sale  of  an  estate  by  pri- 
vate contract,  67. 

Agreement  to  b?  signed  by  an  auctioneer, 
after  a  sale  by  auction,  68. 

Agreement  to  be  signed  by  the  purchaser, 
after  a  sale  by  auction,  68. 

Agreement  to  make  an  assignment  of  a 
lease,  69. 

Agreement,  for  making  a  quantity  of  manu- 
factured articles,  69. 

Agreement  between  a  trader  and  a  book- 
keeper, 70. 

Agreement  for  damages  in  laying  out  or 
altering  road,  70. 

Agreement  between  a  person  who  is  retir- 
ing from  the  active  part  of  a  business, 
and  another  who  is  to  conduct  the  same 
for  their  mutual  benefit,  71. 

Brief  building-contract,  73. 

Full  and  minute  building-contract,  74. 

Specification  to  be  annexed  to  the  building- 
contract,  78. 
APPRENTICES. 

A  general  indenture  of  apprenticeship  as 
sometimes  used  in  New  England,  13. 

Shorter  indenture  of  apprenticeship,  14. 
682 


ARBITRATION. 

Simple  agreement  to  refer,  242. 

Arbitration  bond.  One  or  more  arbitrators, 
242. 

Award  of  arbitrators,  243. 
ASSIGNMENTS* 

Brief  form  of  an  assignment  to  be  indorsed 
on  a  note,  or  any  similar  promise  or 
agreement,  fOG. 

General  assignment,  with  power  of  at- 
torney, 10G. 

Assignment  of  a  bond,  107. 

Assignment  of  a  bond,  with  power  of  at- 
torney, and  a  covenant,  107. 

Assignment  of  a  judgment,  in  the  form  of 
an  indenture,  108. 

Assignment  of  wages,  with  power  of  at- 
torney, 109. 
ATTORNEY,  POWERS  OF,  AND  AGENCT. 

Power  of  attorney,  208. 

Power  of  substitution,  209. 

Power  of  attorney,  in  a  shorter  form,  209. 

Full  power  of  attorney  to  demand  and  re- 
cover debts,  210. 

Power  of  attorney  to  sell  and  deliver 
chattels,  211. 

Power  of  attorney  given  by  seller  to  buyer, 
211. 

Power  of  attorney  to  sell  shares  of  stock, 
with  appfiintment  by  attorney  of  substi- 
tute, 212. 

Power  of  attorney  to  subscribe  for  stock,212. 

Proxy  or  power  of  attorney  to  vote,  212. 

Proxy  revoking  all  previous  proxies,  213. 

Proxy  with  affidavit  of  ownership,  in  use 
in  New  York,  213. 

Power  to  receive  dividend,  214. 
BONDS. 

Simple  bond,  without  condition,  99. 

Bond  for  payment  of  money,  with  a  con- 
dition to  that  effect,  with  power  of  attor- 
ney to  confess  judgment  annexed,  99. 


INDEX   OF  FOEMS. 


683 


BONDS,  Continued :  — 

Bond  for  conveyance  of  a  parcel  of  land, 

100. 

Bond  for  a  deed  of  land,  with  acknowledg- 
ment before  notary  public,  101. 
Bond  in  another  form,  for  conveyance  of 

land,  with  acknowledgment,  102. 
Bond  to  corporation  for  payment  of  money 
due  for  contribution  to  capital  stock,  with 
power  of  attorney  to  confess  judgment, 
103. 

CARRIAGE  OF  GOODS  AND  PASSENGERS. 
Steam  packet  company's  receipt,  260. 
Express  company's  receipt,  201. 
COPYRIGHT. 

Agreement  between  author  and  publisher ; 

short  form,  590. 
Agreement  between  author  and  publisher; 

fuller  form,  590. 

Assignment  of  a  copyright,  598. 
DEEDS  CONVEYING  LAND. 

Deed  poll  of  warranty,  in  common  use  In 

New  England,  445. 
Deed  of  gift  by  indenture,  without  any 

warranty  whatever,  440. 
Deed  of  bargain  and  sale,  without  any  war- 
ranty, 447. 
Quit -claim  deed,  without   any  warranty, 

448. 
Deed  poll  of  release  and  conveyance;  short 

form,  449. 
Deed,  with  special  warranty  against  the 

grantor  only,  449. 
Quit-claim   deed  (long   form),  homestead 

waiver,  451. 

Deed,  with  covenant  against  grantor,  with- 
out release  of  homestead  or  dower,  452. 
Separate  relinquishment  of  homestead  and 
dower  in  land  sold  under  execution,  453. 
Full  warranty  deed,  by  indenture,  without 

release  of  homestead  or  dower,  455. 
Warranty  deed  (short  form),  with  release 

of  homestead  and  dower,  450. 
Warranty  deed,  with  covenant  against  nuis- 
ances, without  release  of  homestead  or 
dower,  458. 
Bond  for  a  deed,  400. 

Contract  for  sale  of  land,  with  penal  obli- 
gation, 401. 

Power  of  attorney  to  sell  lands,  402. 
Trust  deed  for  the  benefit  of  a  wife,  or 

some  other  person,  403. 
Trust  deed  to  secure  payment  of  a  note, 
without  release  of  homestead  or  dower, 
464. 

Deed  of  trust  to  secure  a  debt  (fuller  form), 
and  with  release  of  dower,  400. 


DEEDS  CONVEYING  LAND,  Continued  »  — 
Trust  deed  to  secure  a  note  (shorter  form), 
but  with  warranty,  and  release  of  home- 
stead and  dower,  469. 
Deed  from  trustees,  471. 
Deed  of  master  in  chancery,  473. 
Sheriff's  deed  on  execution,  in  use  in  the 

Western  States,  474. 

Sheriff's  deed,  in  use  in  New  England,  475. 
Sheriff's  tax  deed,  in  use  in  the  Western 

States,  470. 
Deed  of  executor,  in  use  in  the  Eastern 

States,  478. 
Deed  of  executor,  in  use  in  the  Middle 

States,  479. 

Deed  of  administrator  of  intestate,  481. 
Deed  poll  of  guardian  of  a  minor,  483. 
Deed  of  referee  on  foreclosure,  in  use  in 

the  Middle  States,  484. 
Deed  of  collector  of  taxes,  480. 
Deed  of  assignee,  in  use  in  the  Western 

States,  487. 

Acknowledgment  of  grantor  and  wife  iden- 
tified before    commissioner  for  another 
State,  489. 
EXECUTORS  AND  ADMINISTRATORS. 

Petition  to  be  appointed  executor,  without 

further  notice,  6J8. 
Executor's  bond,  049. 
Bond  of  executor,  who  is  also  residuary 

legatee,  650. 

Administrator's  bond,  650. 
Administrator's  petition  for  leave  to  sell  a 

part  of  the  real  estate,  651. 
Administrator's  petition  for  leave  to  sell 

the  whole  of  the  real  estate,  652. 
Bond  of  administrator  licensed  to  sell  real 

estate,  653. 

Account  of  executor,  654. 
GUARANTY. 

Guaranty  to  be  indorsed  on  note,  134. 

Guaranty  of  a  note  on  separate  paper,  134. 

Guaranty  in  another  way,  134. 

Letter  of  guaranty,  134. 

Guaranty  with  collaterals,  authorizing  sale, 

135. 

Guaranty  with  collaterals,  promising  addi- 
tional security  or  authorizing  sale,  135. 
INFANTS. 

Promise  in  writing,  11. 
INSURANCE,  MARINE. 
Abandonment,  392. 
INSURANCE,  FIRE. 

Immediate  notice  of  loss,  419. 
Notice,  with  certificate  of  magistrate,  420. 
Assignment   of  a  policy   to   be   indorsed 
thereon,  421. 


TABLES  OF  INTEREST  AT  SIX  PER  CENT. 

$1 

$2 

$3 

$4 

$5 

Days. 

$6 

$7 

$8 

$9 

$10 

1 

. 

2 

3 

. 

, 

, 

.  1 

4 

. 

.  1 

.  1 

.  1 

5 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

6 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

7 

.  1 

.  1 

.  1 

.  1 

.  1 

I 

.  1 

8 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

.  1 

9 

.  1 

.  1 

.  1 

.  1 

.  2 

1 

.  1 

10 

.  1 

.  1 

.  1 

.  2 

.  2 

1 

.  1 

.  1 

11 

.  1 

.  1 

.  1 

.  2 

.  2 

1 

.  1 

.  1 

12 

.  1 

.  1 

.  2 

.  2 

.  2 

1 

.  1 

.  1 

13 

.  1 

.  2 

.  2 

.  2 

.  2 

1 

.  1 

.  1 

14 

.  1 

.  2 

,  2 

.  2 

.  3 

1 

.  1 

.  1 

.  1 

15 

.  2 

.  2 

.  2 

.  2 

.  3 

1 

.  1 

.  1 

.  1 

16 

.  2 

2 

.  2 

2 

.  3 

1 

.  1 

.  1 

.  1 

17 

.  2 

!  2 

.  2 

!  3 

.  3 

1 

.  1 

.  1 

.  2 

18 

.  2 

.  2 

.  2 

.  3 

.  3 

1 

.  1 

.  1 

2 

19 

.  2 

.  2 

.  3 

.  3 

.  3 

1 

.  1 

.  1 

\  2 

20 

.  2 

.  2 

.  3 

.  3 

.  3 

1 

.  1 

.  1 

.  2 

21 

.  2 

.  2 

.  3 

.  3 

.  4 

1 

.  1 

.  1 

.  2 

22 

2 

.  3 

.  3 

.  3 

.  4 

1 

.  1 

.  2 

.  2 

23 

!  2 

.  3 

.  3 

.  3 

.  4 

1 

.  1 

.  2 

.  2 

24 

.  2 

.  3 

.  3 

.  4 

.  4 

1 

.  1 

.  2 

.  2 

25 

.  3 

.  3 

.  3 

.  4 

.  4. 

1 

.  1 

.  2 

.  2 

26 

.  3 

.  3 

.  3 

.  4 

.  4 

1 

.  1 

2 

.  2 

27 

.  3 

.  3 

.  4 

.  4 

.  5 

1 

.  1 

.  2 

.  2 

28 

.  3 

.  3 

.  4 

.  4 

.  5 

1 

.  1 

.  2 

2 

29 

.  3 

.  3 

.  4 

.  4 

.  5 

1 

.  1 

2 

2 

.  3 

30 

.  3 

.  4 

.  4 

.  5 

.  5 

1 

.  1 

.  2 

.  2 

.  3 

33 

.  3 

.  4 

.  4 

.  5 

.  6 

1 

.  1 

.  2 

.  2 

.  3 

34 

.  3 

.  4 

.  5 

.  5 

.  6 

1 

.  2 

.  3 

.  4 

.  5 

10 

.  G 

.  7 

.  8 

.  9 

.  10 

1 

.  2 

.  3 

.  4 

.  5 

63 

.  6 

.  '7 

.  8 

.  9 

.  11 

1 

.  2 

.  3 

.  4 

.  5 

64 

.  6 

7 

.  9 

.  10 

.  11 

2 

.  3 

.  5 

.  6 

.  8 

90 

.  9 

.  11 

.  12 

.  14 

.  15 

2 

.  3 

.  5 

.  G 

.  8 

93 

.  9 

.  11 

.  12 

.  14 

.  16 

2 

.  3 

.  5 

.  6 

..  8 

94 

-.  9 

.  11 

.  13 

.  14 

.  16 

MontJiS. 

2 

.  4 

.  G 

.  8 

.  10 

4 

.  12 

.  14 

.  16 

.  18 

.  20 

3 

.  5 

.  8 

.  10 

.  13 

5 

.  15 

.  18 

.  20 

.  23 

.  25 

3 

.  6 

.  9 

.  12 

.  15 

6 

.  18 

.  21 

.  24 

.  27 

.  30 

4 

.  7 

.  11 

.  14 

.  18 

7 

.  21 

.  25' 

.  28 

.  32 

.  35 

4 

.  8 

.  12 

.  16 

,  20 

8 

.  24 

.  28 

.  32 

.  36 

.  40 

5 

.  9 

.  14 

.  18 

.  23 

9 

.  27 

.  32 

.  36 

.  41 

.  45 

5 

.  10 

.  15 

.  20 

.  25 

10 

.  30 

.  35 

.  40 

.  45 

.  50 

6 

.  11 

.  17 

.  22 

.  23 

11 

.  33 

.  39 

.  44 

.  50 

.  55 

6 

.  12 

.  18 

.  24 

.  30 

12 

.  36 

.  42 

.  48 

.  54 

.  60 

12 

.  24 

.  36 

.  48 

.  60 

24 

.  72 

.  84 

.  96 

1.08 

1.20 

18 

.  36 

.  54 

.  72 

.  90 

36 

1.08 

1.26 

1.44 

1.62 

1.80 

24 

.  48 

.  72 

.  96 

1.20 

48 

1.44 

1.68 

1.93 

2.16 

2  40 

TABLES  OF  INTEREST  AT  SIX  PER  CENT. 

$1 

<fi  -^ 

<T>  r* 

$3 

$  4   $  ,5 

Day*. 

$G 

i  '  •  V 

$  7 

$8 

$9 

$10 

1 

. 

2 

3 

, 

f 

9 

.  1 

4 

, 

.  1 

.  1 

.  1 

5 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

6 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

7 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

.  1 

8 

.  1 

.  1 

.  1 

.  1 

.  1 

1 

.  1 

9 

.  1 

.  1 

.  1 

.  1 

.  2 

1 

.  1 

10 

.  1 

.  1 

.  1 

.  2 

.  2 

1 

.  1 

.  1 

11 

.  1 

.  1 

.  1 

.  2 

.  2 

1 

.  1 

.  1 

12 

.  1 

.  1 

.  2 

.  2 

.  2 

1 

.  1 

.  1 

13 

.  1 

.  2 

.  2 

.  2 

.  2 

1 

.  1 

.  1 

14 

.  1 

.  2 

.  2 

.  2 

.  3 

1 

.  1 

.  1 

.  1 

15 

.  2 

.  2 

.  2 

.  2 

.  3 

1 

.  1 

.  1 

.  1 

16 

.  2 

.  2 

.  2 

.  2 

.  3 

1 

.  1 

.  1 

.  1 

17 

o 

.  2 

.  2 

.  3 

.  3 

1 

.  1 

.  1 

.  2 

18 

.  2 

.  2 

.  2 

.  3 

.  3 

1 

.  1 

.  1 

2 

19 

.  2 

.  2 

.  3 

.  3 

.  3 

1 

.  1 

.  1 

.  2 

20 

2 

.  2 

.  3 

.  3 

.  3 

1 

.  1 

.  1 

.  2 

21 

.  2 

.  2 

.  3 

.  3 

.  4 

1 

.  1 

.  1 

.  2 

22 

2 

.  3 

.  3 

.  3 

.  4 

1 

.  1 

.  2 

.  2 

23 

.  2 

.  3 

.  3 

.  3 

.  4 

1 

.  1 

.  2 

.  2 

24 

.  2 

.  3 

.  3 

.  4 

.  4 

1 

.  1 

2 

.  2 

25 

.  3 

.  3 

.  3 

.  4 

.  4. 

1 

.  1 

.  2 

.  2 

26 

.  3 

.  3 

.  3 

.  4 

.  4 

1 

.  1 

.  2 

.  2 

27 

.  3 

.  3 

.  .  4 

.  4 

.  5 

1 

.  1 

.  2 

.  2 

28 

.  3 

.  3 

.  4 

.  4 

.  5 

1 

.  1 

.  2 

2 

29 

.  3 

.  3 

.  4 

.  4 

.  5 

1 

.    1 

.  2 

.  2 

'.  3 

30 

.  3 

.  4 

.  4 

.  5 

.  5 

1 

.    1 

.  2 

2 

.  3 

33 

.  3 

.  4 

.  4 

.  5 

.  6 

1 

.    1 

2 

.  2 

.  3 

34 

.  3 

.  4 

.  5 

.  5 

.  6 

1 

.  2 

!  3 

.  4 

.  5 

to 

.  G 

.  7' 

.  8 

.  9 

.  10 

1 

.  2 

.  3 

.  4 

.  5 

63 

.  6 

.  -7 

.  8 

.  9 

.  11 

1 

.  2 

.  3 

.  4 

.  5 

64 

.  6 

.  7 

.  9 

.  10 

.  11 

2 

.  3 

.  5 

.  6 

.  8 

90 

.  9 

.  11 

.  12 

.  14 

.  15 

2 

.  3 

.  5 

.  G 

.  8 

93 

.  9 

.  11 

.  12 

.  14 

.  16 

2 

.  3 

.  5 

.  6 

..  8 

94 

•.  9 

.  11 

.  13 

.  14 

.  16 

Monti  is. 

2 

.  4 

.  6 

.  8 

.  10 

4 

.  12 

.  14 

.  16 

.  18 

.  20 

3 

.  5 

.  8 

.  10 

.  13 

5 

.  15 

.  18 

.  20 

.  23 

.  25 

3 

.  6 

.  9 

.  12 

.  15 

6 

.  18 

.  21 

.  24 

.  27 

.  30 

4 

.  7 

.  11 

.  14 

.  18 

7 

.  21 

.  25 

.  28 

.  32 

.  35 

4 

.  8 

.  12 

.  16 

,  20 

8 

.  24 

.  28 

.  32 

.  36 

.  40 

5 

.  9 

.  14 

.  18 

.  23 

9 

.  27 

.  32 

.  36 

.  41 

.  45 

5 

.  10 

.  15 

.  20 

.  25 

10 

.  30 

.  35 

.  40 

.  45 

.  50 

6 

.  li 

.  17 

.  22 

.  23 

11 

.  33 

.  39 

.  44 

.  50 

.  55 

6 

.  12 

.  18 

.  24 

.  30 

12 

.  36 

.  42 

.  48 

.  54 

.  69 

12 

.  24 

.  36 

.  48 

.  60 

24 

.  72 

.  84 

.  96 

1.08 

1.20 

18 

.  36 

.  54 

.  72 

.  90 

36 

1.08 

1.26 

1.44 

1.62 

1.80 

24 

.  48 

.  72 

.  96 

1.20 

48 

1.44 

1.68 

1.92 

2.16 

2  40 

TABLES  OF  INTEREST  AT  SIX  PER  CENT. 

$20 

$3O 

$40 

$5O 

$60 

Days. 

$70 

$8O 

$90 

$1OO 

$2OO 

1 

.  1 

.  1 

.  1 

1 

.  1 

.  I 

.  2 

.  2 

.  3 

1 

.  1 

.  1 

.  2 

.  2 

2 

.  2 

.  3 

.  3 

.  3 

.  7 

1 

.  2 

.  2 

.  3 

.  3 

3 

.  4 

.  4 

.  5 

.  5 

.  10 

1 

.  2 

.  3 

.  3 

.  4 

4 

.  5 

.  5 

.  6 

.  7 

.  13 

2 

.  3 

.  3 

.  4 

.  5 

5 

.  6 

.  7 

.  8 

.  8 

.  17 

2 

.  3 

.  4 

.  5 

.  6 

6 

.  7 

.  8 

.  9 

.  10 

.  20 

2 

.  4 

.  5 

.  6 

.  7 

7 

.  8 

.  9 

.  11 

.  12 

.  23 

3 

.  4 

.  5 

.  7 

.  8 

8 

.  9 

.  11 

.  12 

.  13 

.  27 

3 

.  5 

.  6 

.  8 

.  9 

9 

.  11 

.  12 

.  14 

.  15 

'.  30 

3 

.  5 

.  7 

.  8 

.  10 

10 

.  12 

.  13 

.  15 

.  17 

.  33 

4 

.  6 

.  7 

.  9 

.  11 

11 

.  13 

.  15 

.  17 

.  18 

.  37 

4 

.  6 

.  8 

.  10 

.  12 

12 

.  14 

.  16 

.  18 

.  20 

.  40 

4 

.  7 

.  9 

.  11 

.  13 

13 

.  15 

.  17 

.  20 

.  22 

.  43 

5 

.  7 

.  9 

.  12 

.  14 

14 

.  16 

.  19 

.  21 

.  23 

.  47 

5 

.  8 

.  10 

.  13 

.  15 

15 

.  18 

.  20 

.  23 

.  25 

.  50 

5 

.  8 

.  11 

.  13 

.  16 

16 

.  19 

.  21 

.  24 

.  27 

.  53 

6 

.  9 

.  11 

.  14 

.  17 

17 

.  20 

.  23 

.  26 

.  28 

.  57 

6 

.  9 

.  12 

.  15 

.  18 

18 

.  21 

.  24 

.  27 

.  30 

.  60 

6 

.  10 

.  13 

.  16 

.  19 

19 

.  22 

.  25 

.  29 

.  32 

.  63 

7 

..10 

.  13 

.  17 

.  20 

20 

.  23 

.  27 

.  30 

.  33 

.  67 

7 

.  11 

.  14 

.  18 

.  21 

21 

.  25 

.  28 

.  32 

.  35 

.  70 

7 

.  11 

.  15 

.  18 

.  22 

22 

.  26 

.  29 

.  33 

.  37 

.  73 

8 

.  12 

.  15 

.  19 

.  23 

23 

.  27 

.  31 

.  35 

.  38 

.  77 

8 

.  12 

.  16 

.  20 

.  24 

24 

.  28 

.  32 

.  36 

.  40 

.  80 

8 

.  13 

.  17 

.  21 

.  25 

25 

.  29 

.  33 

.  38 

.  42 

.  83 

9 

.  13 

.  17 

.  22 

.  26 

26 

.  30 

.  35 

.  39 

.  43 

.  87 

9 

.  14 

.  18 

.  23 

.  27 

27 

.  32 

.  36 

.  41 

.  45 

.  90 

9 

.  14 

.  19 

.  23 

.  28 

28 

.  33 

.  37 

.  42 

.  47 

.  93 

10 

.  15 

.  19 

.  24 

.  29 

29 

.34 

.  39 

.  44 

.  48 

.  97 

10 

.  15 

.  20 

.  25 

.  30 

30 

.  35 

.  40 

.  45 

.  50 

1.00 

11 

.  17 

.  22 

.  28 

.  33 

33 

.  39 

.  44 

.  50 

.  55 

1.10 

11 

.  17 

.  23 

.  28 

.  34 

34 

.  40 

.  45 

.  51 

.  57 

1.13 

20 

.  30 

.  40 

.  50 

.  60 

60 

.  70 

.  80 

.  90 

1.00 

2.09 

21 

.  32 

.  42 

.  53 

.  63 

63 

.  74 

.  84 

.  95 

1.05 

2.10 

21 

.  32 

.  43 

.  53 

.  64 

64 

.  75 

.  85 

.  96 

1.07 

2.13 

30 

.  45 

.  60 

.  75 

.  90 

90 

1.05 

1.20 

1.35 

1.50 

3.00 

31 

.  47 

.  62 

.  78 

.  93 

93 

1.09 

1.24 

1.40 

1.55 

3.10 

31 

.  47 

.  63 

.  78 

.  94 

94 

1.10 

1.25 

1.41 

1.57 

3.13 

Montlis. 

40 

.  60 

.  80 

1.00 

1.20 

4 

1.40 

1.60 

1.80 

2.00 

4.00 

50 

.  75 

1.00 

1.25 

1.50 

5 

1.75 

2.00 

2.25 

2.50 

5.00 

60 

.  90 

1.20 

1.50 

1.80 

6 

2.10 

2.40 

2.70 

3.00 

6.00 

70 

1.05 

1.40 

1.75 

2.10 

7 

2.45 

2.80 

3.15 

3.50 

7.00 

80 

1.20 

1.60 

2.00 

2.40 

8 

2.80 

3.20 

3.60 

4.00 

8.00 

90 

1.35 

1.80 

2.25 

2.70 

9 

3.15 

3.60 

4.05 

4.50 

9.00 

1.00 

1.50 

2.00 

2.50 

3.00 

10 

3.50 

4.00 

4.50 

5.00 

10.00 

1.10 

1.65 

2.20 

2.75 

3.30 

11 

3.85 

4.40 

4.95 

5.50 

11.00 

1.20 

1.80 

2.40 

3.00 

3.60 

12 

4.20 

4.80 

5.40 

6.00 

12.00 

2.40 

3.60 

4.80 

6.00 

7.20 

24 

8.40 

9.60 

10.80 

12.00 

24.00 

3.60 

5.40 

7.20 

9.00 

10.80 

36 

12.60 

14.40 

16.20 

18.00 

36.00 

4.80 

7.20 

9.60 

12.00 

14.40 

48 

16.80 

19.20 

21.60 

24.00 

48.00 

TABLES  OF   INTEREST  AT  SIX  PER  CENT. 

$3OO 

$4OO 

$5OO 

$60O 

Days. 

$7OO 

$8OO 

$900 

$10OO 

5 

.     7 

.     8 

.10 

1 

.  12 

.  13 

.  15 

.  17 

10 

.  13 

.  17 

•  .  20 

2 

.  23 

.  27 

.  30 

.  33 

15 

.  20 

.  25 

.  30 

3 

.  35 

.  40 

.  45 

.  50 

20 

.  27 

.  33 

.  40 

4 

.  47 

.  53 

.  60 

.  67 

25 

.  33 

.  42 

.  50 

5 

.  58 

.  67 

.  75 

.  83 

30 

.  40 

.  50 

.  60 

6 

.  70 

.  80 

.  90 

1.00 

35 

.  47 

.  58 

.  70 

7 

.  82 

.  93 

1.05 

1.17 

40 

.63 

.  67 

.  80 

8 

.  93 

1.07 

1.20 

1.33 

•45 

.  60 

.  75 

.  90 

9 

1.05 

1.20 

1.35 

1.50 

50 

.  67 

.  83 

1.00 

10 

1.17 

1.33 

1.50 

1.67 

55 

.  73 

.  92 

1.1.0 

11 

1.28 

1.47 

1.65 

1.83 

60 

.  80 

1.00 

1.20 

12 

1.40 

1.60 

1.80 

2.00 

65 

.  87 

1.08 

1.30 

13 

1.52 

1.73 

1.95 

2.17 

70 

.  93 

1.17 

1.40 

14 

'   1.63 

1.S7 

2.10 

2.33 

75 

1.00 

1.25 

1.50 

15 

1.75 

2.00 

2.25 

2.50 

80 

1.07 

1.33 

1.60 

16 

1.87 

2.13 

2.40 

2.67 

85 

1.13 

1.42 

1.70 

17 

1.98 

2.27 

2.55 

2.83 

,  90 

1.20 

1.50 

1.80 

18 

2.10 

2.40 

2.70 

3.00 

95 

1.27 

1.58 

1.90 

19 

2.22 

2.53 

2.85 

3.17 

1.00 

1.33 

1.67 

2.00- 

20 

•2.33 

2.67 

3.00 

3.33 

1.05 

1.40 

1.75 

2.10 

21 

2.45 

2.80 

3.15' 

350 

1.10 

1.47 

1.83 

2.20 

22 

2.57 

2.93 

3.30 

3.67 

1.15 

1.53 

1.92 

2.30 

23 

2.68 

3.07 

3.45 

3.83 

1.20 

1.60 

2.00 

.     2.40 

24 

2.80 

3.20 

3.60 

4.00 

1.25 

1.67 

2.08 

2.50 

25 

2.92 

3.33 

3.75 

4.17 

1.30 

1.73 

2.17 

2.60 

26 

3.03 

3.47 

3.90 

4.33 

1.35 

1.80 

2.25 

2.70 

27 

3.15 

3.60 

4.05 

4.50 

1.40 

1.87 

2.33 

2.80 

28 

327 

3.73 

4.20 

4.67 

1.45 

1.93 

2.42 

2.90 

29 

3.38 

3.87 

4.35 

4.83 

1.50 

2.00 

2.50 

3.00 

30 

3.50 

4.00 

4.50 

5.00 

1.65 

2  20 

2.75 

3.30 

33 

3.85 

4.40 

4.95 

5.50 

1.70 

2.27 

2.83 

3.40 

34 

3.97 

4.53 

5.10 

5.67 

3.00 

4.00 

5.00 

6.00 

60 

7.00 

8.00 

9.00 

10.00 

3.15 

4.20 

5.25 

6.30 

63 

7.35 

8.40 

9.45 

10.50 

3.20 

4.27 

5.33 

6.40 

64 

7.47 

8.53 

9  60 

10.67 

4.50 

6.00 

7.50 

9.00 

90 

10.50 

12.00 

13.50 

15.00 

4.65 

6.20 

7.75 

9.30 

93 

10.85 

12.40 

13.95 

15.50 

4.70 

627 

7.83 

9.40 

94 

10.97 

12.53 

14.10 

15.67 

Montlis. 

6.00 

8.00 

10.00 

12.00 

4 

14.00 

16.00 

18.00 

20.00 

7.50 

10.00 

12.50 

15.00 

5 

17.50 

20.00 

22.50 

25.00 

9.00 

12.00 

15.00 

18.00 

6 

21.00 

24.00 

27.00 

30.00 

10.50 

14.00 

17.50 

21.00 

7 

24.50 

28.00 

31.50 

35.00   . 

12..00 

16.00 

20.00 

24  00 

8 

28.00 

32.00 

36.00 

40.00 

13.50 

18.00 

22.50 

27.00 

9 

31.50 

36.00 

40.50 

45.00 

15.00 

20.00 

25.00 

30.00 

10 

35.00 

40.00 

45.00 

50.00 

16.50 

22.00 

27.50 

33.00 

11 

38.50 

44.00 

49.50 

55.00 

18.00 

24.00 

30.00 

36.00 

12 

42.00 

48.00 

54.00 

60.00 

36.00 

48.00 

60.00 

72.00 

24 

84.00 

96.00 

108.00 

120.00 

54.00 

72.00 

90.00 

108.00 

36 

126.00 

144.00 

162.00 

180.00 

72.00 

96.00 

120.00 

144.00 

48 

168.00 

192.00 

216.00 

240.00 

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20.... 

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8 

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21.... 

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4    5 

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6 

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10  10  11 

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23 

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1Mb  19  20  21 

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28  29  30  : 

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8  10  11  12  14  15  10  18  19  20  2223 

25  2G  27 

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2*  30  31  33  '34  36  37  S9  40  42  44  45 

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8  10  12  14  1(5  is  19  21  23  25  27  29  31  33  35  37  39  41  43  45  47  49  51  53  54  5C 

DOLL'S. 

1 

o 

3 

4 

5 

6 

7 

8 

9 

10 

11 

1.. 

1 

1 

2 

2 

3 

4 

4 

5 

5 

e 

6 

2.... 

1 

2 

4 

5 

6 

7 

8 

9 

11 

12 

13 

3.... 

2 

4 

5 

7 

9 

11 

12 

14 

15 

18 

19 

4.... 

2 

5 

7 

9 

12 

14 

1G 

19 

21 

23 

26 

5.... 

3 

6 

9 

13 

15 

18 

20 

23' 

26 

29 

32 

6.... 

4 

7 

11 

14 

18 

21 

05 

28 

32 

35 

39 

7.... 

4 

8 

12 

16 

20 

25 

£9 

33 

36 

41 

44 

8.... 

5 

9 

14 

19 

23 

28 

33 

37 

42 

47 

51 

9.... 

5 

11 

16 

21 

26 

32 

37 

42 

47 

53 

57 

10.... 

6 

12 

18 

23 

29 

a> 

41 

47 

53 

58 

64 

11.... 

6 

13 

19 

26 

32 

39 

45 

51 

57 

64 

70 

12.... 

7 

14 

21 

23 

85 

42 

49 

56 

63 

70 

77 

13.... 

8 

15 

23 

30 

38 

46 

53 

61 

68 

7G 

83 

14.... 

8 

16 

25 

33 

41 

49 

57 

65 

74 

S2 

90 

15.... 

9 

18 

26 

35 

44 

53 

61 

70 

78 

>8 

96 

16.... 

9 

19 

28 

37 

47 

56 

65 

75 

84 

93 

103 

17.... 

10 

20 

30 

40 

50 

60 

69 

79 

89 

19 

109 

18.... 

11 

21 

32 

42 

53 

63 

.    74 

84 

96 

106 

116 

19.... 

11 

22 

33 

44 

55 

67 

78 

89 

99 

111 

131 

20.... 

12 

23 

35 

47 

58 

70 

82 

93 

105 

117 

128 

21.... 

12 

25 

37 

49 

61 

74 

86 

9 

S 

1 

10 

123 

134 

2-2.... 

13 

26 

39 

51 

64 

77 

90 

103 

116 

128 

141 

25.... 

15 

29 

44 

58 

73 

88 

102 

117 

131 

146 

160 

30.... 

18 

35 

53 

70 

88 

105 

123 

140 

158 

1 

15 

193 

40.... 

23 

47 

70 

93 

117 

140 

163 

187 

210 

233 

257 

50.... 

29 

58 

88 

117 

146 

175 

204 

233 

2  G2 

292 

321 

CO.... 

35 

70 

105 

140 

175 

210 

245 

280 

315 

350 

385 

70.... 

41 

82 

123 

163 

204 

245 

286 

327 

368 

408 

449 

80.... 

47 

93 

140 

187 

233 

280 

327 

373 

420 

467 

513 

90.... 

53 

105 

158 

210 

263 

315 

368 

420 

4 

72 

525 

577 

100.... 

53 

117 

175 

233 

292 

350 

408 

467 

5 

25 

5  83       6  42 

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tioned in  Scripture,  with  an  Appendix  to  the  second  table  of  Measures 
of  Surface  described  by  Moses. 


VIII.  The  contents  of  the  Old  and  New  Testaments  arranged  in 
a  manner  by  which  the  Books,  Chapters,  &e.,  may  be  read  as  one  con- 
nected History. 

IX.  Chronological  Tables  of  the  Offices  and  Conditions  of  Men; 
Chronological  Tables  of  the  New  Testament;  of  St.  Paul's  Apostolic 
Journeys ;  of  the  Evangelists,  and  exhibiting  the  Chronology  of  our 
Saviour's  Life ;  of  the  Important  Events  of  Profane  History  during  the 
Life  of  Christ,  and  the  Chronological  Order  of  the  Discourses,  Parables, 
and  Miracles  of  Christ. 

X.  Illustrations  of  Scripture  with  numerous  Steel  Engravings. 

XI.  The  Books  of  the  Old  Testament 

XII.  History  of  the  Period  included  from  the  close  of  the  Canon 
of  the  Old  Testament,  until  the  times  of  the  New  Testament. 

XIII.  Four  Discourses  on  the  Evidences  of  Christianity,  and  the 
Genuineness  of  the  New  Testament ;  by  Philip  Doddridge,  D.  D. 

XIV.  An  Introduction  to  the  Study  of  the  New  Testament,  with 
a  History  of  the*  several  Books. 

XV.  The  Books  of  the  New  Testament. 

XVI.  A  new  "Geographical  and  Historical  Table,  exhibiting  at 
one  view  all  that  is  interesting  in  the  Geography  and  History  in  the 
Holy  Scriptures,  and  forming  a  complete  Bible  Gazetteer. 

XVII.  A  new  and  complete  General  Index  of  the  Bible,  in  which 
the  various  Places,  Persons,  and  Subjects  mentioned  in  it  are  accurately 
referred  to,  and  every  difficult  word  briefly  explained. 

XVIII.  A  Concordance  of  the  Holy  Scriptures  of  the  Old  and 
New  Testaments,   by  which  all  of  the   principal  texts  of  the  Scrip- 
tures may  be  easily  found  out ;  by  Rev.  John  Brown. 

XIX.  Table  of  Select  Passages,  arranged  with  a  view  to  the  De- 
votional Reading  of  the  Bible,  morning  and  evening,  every  day  in  the 
year. 

It  will  be  readily  seen,  that  no  single  edition  of  the  Holy  Scriptures 
has  ever  been  given  to  the  public  accompanied  by  so  many  and  such 
valuable  aids  to  their  practical  and  profitable  reading  and  study  as  this. 

To  Sabbath  School  Superintendents,  Teachers  and  Scholars,  this 
with  the  accompanying  volume,  is  almost  indispensable,  and  furnishes, 
in  a  convenient  and  practical  form,  nearly  every  requisite  aid  in  their 
pursuits  upon  every  subject  and  question  which  can  arise. 

This  work  has  been  very  highly  commended  by  influential  Divines 
and  Pastors  of  Churches,  and  should  be  found  in  every  household  in 
the  land ;  while  to  aid  in  its  sale  will  be  both  a  useful  and  profitable 
work. 

Agents  write  that  this  work  is  highly  satisfactory  and  sells  readily. 

Descriptive  Circulars  will  be  forwarded  to  those  desiring  an 
agency.  Address  the  Publishers. 


IFIEOZPLIE'S 


THE    LIFE    AND   EPISTLES 

OF 


EMBRACING 

A  Graphic  and  Eloquent  Delineation  of  the  Early  Life,  Education,  Conversion,  Teach- 

ings, Labors,  Travels,  Sufferings,  Perils,  Persecutions,  and  Missionary  Career  of 

St,  Paul,  thus  constituting  a  Living  Picture  of  the  Great  Apostle  himself, 

and  of  the  circumstances  by  which  he  was  surrounded. 

BY 

Rev.     W.     J.      CONYBEARE,     M.    A., 

LATE  FELLOW  OF  TRINITY  COLLEGE,  CAMBRIDGE,  i 

AND 

H-ev,     J.     S,    HOWSON,    ID!*  D. 

PRINCIPAL  OF  THE  COLLEGIATE  INSTITUTION,  LIVERPOOL. 

% 

With,  a  Preliminary  Dissertation  by 

Rev.    LEONARD    BACON,    D.    D., 

PROFESSOR  OF  REVEALED  THEOLOGY  IN  YALE  COLLEGE. 


This  work  delineates  the  early  life,  education,  conversion,  teachings 
and  labors  of  a  man,  whose  writings  are  now  engaging  more  thought, 
calling  forth  more  learned  discussion,  and  more  powerfully  impressing 
the  mind  and  heart  of  the  age,  than  those  of  any  other  author,  ancient  or 
modern,  inspired  or  uninspired.  Jesus  said  of  Paul,  "  He  is  a  chosen 
vessel  unto  me,"  and  the  Scripture  biography  before  us  shows  the  won- 
derful care  which  God  took  in  preparing  that  vessel  before  He  filled  it 
with  his  grace  and  set  it  apart  for  the  Master's  special  use  in  His  great 
house.  Grand  intellectual  powers,  united  with  a  pure  and  loving  heart, 
and  a  life  filled  with  strange,  heroic,  and  self-sacrificing  adventures, 
made  St  Paul  the  most  wonderful  man  of  all  the  ages.  No  better  sub 
ject  could  be  found  for  a  biography,  nor  any  better  men  selected  to  pre- 
pare it.  The  work  faithfully  portrays,  in  a  very  fresh  and  life-like 
manner,  the  character  and  doings  of  one  of  earth's  noblest  heroes. 

This  work  contributes  more  to  the  correct  understanding  of  St.  Paul's 
Epistles,  and  to  a  thorough  apprehension  of  his  unparalleled  character 
—  of  the  communities  upon  which  he  labored,  —  of  the  countries  through 
which  he  traveled,  —  of  the  chief  characters  whom  he  met,  both  friend 
and  foe,  —  of  his  personal  hopes  and  fears,  —  of  his  temporary  failures 

(6) 


and  permanent  triumphs, — than  any  other  one  volume.  The  scenes  of 
his  early  youth  ;  the  character  of  the  school  in  which  he  was  educated  ; 
the  habits  of  private  life  then  prevalent ;  the  principles  which  actuated 
him,  and  developed  that  intellectual  character,  and  made  him  the  fore- 
most reasoner  of  the  world,  are  all  represented  in  a  style  which  lends 
a  charm  to  the  work,  at  once  .pleasing  and  instructive,  and  makes  it 
truly  a  "People's  Edition."  It  embodies  more  information  concerning, 
ancient  and  Eastern  life  ;  carries  the  reader  more  agreeably  and  irresis- 
tibly into  the  times  and  scenes  of  Paul's  life ;  and  illustrates  better 
that  large  part  of  the  New  Testament  which  he  wrote  than  any  other 
book  in  biblical  literature.  It  brings  more  learning,  and  the  results  of 
more  biblical,  geographical,  and  ethnological  research  than  any  other 
work,  to  bear  in  making  interesting  the  life,  and  elucidating  the  writings 
of  him  who -was,  not  only  the  great  Apostle  to  the  Gentiles,  but  also 
the  great  Theologian  of  the  whole  Bible, — whose  name  is  second  to  no 
other  human  name  in  the  history  of  the  Church  of  God.  It  throws  a 
flood  of  light  on  the  character,  travels,  missionary  labors  and  writings 
of  the  great  Apostle,  and  throws  open  that  wonderful  period  of  the 
world's  history  as  no  other  work  has  ever  done.  The  reader  is  borne 
along  by  its  clear  and  charming  style,  its  picturesque  and  vivid  descrip- 
tions of  scenery,  and  its  beautiful  delineations  of  Apostolic  characters 
and  labors,  and  at  every  point  is  delighted  and  instructed.  It  is  as  fas- 
cinating as  any  story  can  be,  and  yet  it  is  true  to  life  and  Bible  History. 
The  prodigious  learning  and  power,  and  beauty  of  style,  do  not  consti- 
tute its  highest  praise.  This  is  found  in  its  moral  and  religious  spirit, 
in  its  pre-eminent  Christian  candor  and  impartiality,  in  its  solemn  ear- 
nestness for  historic  truth,  and  its  manly  and  unvascillating  faith  in  the 
doctrines  proclaimed  by  the  fearless  subj  ect  of  its  biography.  It  is  every 
way  a  masterly  and  unrivalled  work,  and  so  wholly  worthy  its  subject 
in  all  the  manner  of  its  performance,  that  it  is  not  saying  too  much  to 
pronounce  it  a  fitting  tribute  to  the  greatness  of  the  Great  Apostle. 

The  preliminary  dissertation  by  Dr.  Bacon,  gives  it  additional  value, 
and  helps  further  to  understand  the  character  of  the  great  Apostle,  and 
the  scenes  of  the  early  triumphs  of  the  Gospel.  His  abilities,  studies 
and  traVel,  eminently  fit  him  for  the  service  he  thus  renders. 

Send  for  our  16  page  descriptive  circular,  giving  full  particulars, 
terms,  and  testimonials.  Address  the  Publishers 


The  Oldest  and  the  Newest  Empire: 

CHINA- UNITED  STATES. 

Embracing  a  Geographical  and  Historical  Description  of  the  Empire 

of  China  and  its  Inhabitants;  a  View  of  Chinese  Immigration  to  the  United  State*, 

and  iU  Influence  upon  our  National  Interests  and  Public 

and  Domestic  Institutions. 

BY  WILLIAM  SPEER,  D.D., 

Corresponding  Secretary  of  the  Presbyterian  Board  of  Education ;  formerly  Missionary  in  China, 
and  to  the  Chinese  in  California. 


THE  recent  remarkable  events  growing  out  of  a  cliange  in  the  international 
policy  of  the  government  of  China,  and  the  constant  emigration  from  that 
country  to  the  United  States,  have  created  a  universal  demand  for  clear  and 
authentic  information  regarding  that  remarkable  people,  and  their  relation  to 
us.  To  meet  this  demand,  no  writer  in  America  or  abroad  is  better  qualified 
than  the  author  of  the  present  volume.  „ 

Having  spent  several  years  in  China,  Dr.  SPEER  afterwards,  in  1852,  estab- 
lished the  first  Christian  Mission,  and  carried  on  many  philanthropic  labors  for 
the  benefit  of  the  Chinese  in  this  country,  and  was  widely  known  on  the  Pacific 
coast  as  the  "  friend  of  the  Chinese."  He  thereby  became  thoroughly  acquainted 
with  their  language,  literature  and  institutions,  and  especially  with  their  char- 
acter and  capacities  as  immigrants,  and  with  the  questions  and  problems  which 
arise  in  connection  with  their  residence  here. 

The  Oldest  and  the  Newest  Empire  embodies  the  results  of  the  author's  study 
and  observations  during  many  years,  and  consequently  abounds  in  the  kind  of 
information  which  every  one  requires. 

It  graphically  describes  the  geography  and  natural  productions  of  China.  It 
gives  a  view  of  the  history,  literature,  arts  and  sciences,  and  manners  and  cus- 
toms of  the  inhabitants,  and  explains  the  origin,  causes,  and  progress  of  the 
recent  changes  in  the  foreign  and  domestic  policy  of  this  remarkable  race. 

The  work  is  most  timely  in  throwing  light  upon  the  important  subject  of 
Chinese  labor  in  America ;  exhibiting  its  adaptation  to  our  wants,  the  capacity 
of  the  Chinese  as  laborers,  domestic  servants,  factory  operatives,  miners  and 
agriculturists,  and  their  importance  as  a  means  of  increasing  the  working  power 
of  the  country,  and  of  introducing  products  and  manufactures  unknown  to  OUP 
industry,  and  developing  the  almost  unlimited  wealth  of  our  unoccupied  ter- 
ritory. 

It  is  full  of  practical  information  upon  the  great  political  questions  already 
rising  to  view,  which  grow  out  of  their  rights  and  obligations  under  our  insti- 
tutions, and  our  reciprocal  duties  to  them. 

The  moral  questions  which  result  from  the  influence  to  be  exerted  by  this 
Pagan  element  upon  our  own  population,  and  the  facilities  it  will  supply  for 
the  enlightenment  and  evangelizing  of  the  most  populous  nation  of  the  earth, 
are  treated  with  great  ability,  and  in  a  manner  to  command  the  attention  and 
approbation  of  the  Christian  and  the  philanthropist. 

Circulars,    giving    terms  and  full  particulars  sent  free  on 
application  to  any  one  desiring  an  agency. 

ADDRESS    THE    PUBLISHERS. 


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